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Workmen's  Compensation,  or  Insur- 
ance Against  Loss  of  Wages 
Arising  Out  of  Industrial 
Accidents 


ADDRESS 


BY 


JAMES  HARRINGTON  BOYD,  A.  B.,  A.  M.,  Dr.  Sc. 

President  Ohio  Employers"  Liabilit}'  Commission 


DELIVERED    BEFORE 

OHIO  STATE  BOARD  OF  COMMERCE 

Columbus,  Ohio,  November  17,  1910 


With  Prefatory  Note    and  Appendices 


4  ~>  i     4  >  a 


Published  by 

BOARD  OF  LIBRARY  COMMISSIONERS 

J.  F.  McGrew  John   McSvveeney 

Frank  N.  Svveitzer 


Columbus,  Ohio : 

The  F.  J.  Heer,  Printing  Co. 

1911 


■> 


•    •    ••   • 


C      9    c    •   •     • 


PREFATORY  NOTE. 


The  increasing  interest  in  legislation  to  secure  vvorkingmen  against 
loss  arising  from  industrial  accidents  was  attested  in  the  appointment  last 
winter  of  employers'  liability  commissions  by  the  states  of  Connecticut, 
Illinois,  Massachusetts,  Minnesota,  Montana,  New  Jersey,  New  York, 
Ohio,  and  Wisconsin,  to  investigate  workingmen's  compensation  and 
insurance  with  a  view  to  remedial  legislation.  These  commissions  re- 
cently met  in  Chicago  to  exchange  views  and  to  plan,  so  far  as  prac- 
ticable, uniformity  of  action.  The  report  of  their  proceedings,  which 
is  now  passing  through  the  press,  will  be  the  latest,  and  from  the 
American  viewpoint,  probably  the  most  important  contribution  to  the 
subject. 

The  Illinois  commission  has  hnished  its  work  anJ  its  report  has  been 
published.  In  speaking  of  this  tiie  secretary  of  tlie  commission  de- 
clares, "For  the  first  time  in  the  history  of  Illinois,  if  not  in  the  United 
States,  we  liave  a  text-book  on  the  subject  of  employers'  liability. 
More  than  5,000  individual  accidents  were  investigated  and  recorded,  to- 
gether with  comparative  figures  and  analyses."  Reports  ;of  other 
state  commissions,  embracing  as  some  of  them  will  the  testimony  of 
experts  who  have  investigated  conditions  in  this  country  and  the  ex- 
perience of  European  nations,  will  constitute  a  most  valuable  addition  to 
the  literature  on  this  subject. 

The  Ohio  commission  at  this  time  has  not  completed  its  work,  and 
no  attempt  will  be  made  to  anticipate  its  report.  It  has  had  ninuerous 
and  well  attended  public  hearings  in  which  employers,  employes  and 
other  interested  parties  have  spoken  freely  on  almost  every  phase  of 
compensation  for  accident.  Indeed  the  discussions  have  taken  a  much 
wider  range  and  have  included  sickness,  invalidity  and  old  age  insur- 
ance. The  systems  and  experiences  of  European  nations,  especially 
those  of  Germany  and  Great  liritain,  have  been  presented  by  experts 
who  recently  returned  from  abroad,  \vhere  they  had  made  exten  led  and 
systematic  investigation. 

In  general  it  may  be  said  that  manufacturers  have  favored  a  single 
compensation  or  accident  insurance,  similar  to  that  of  Germany.  There 
have,  however,  been  a  few  dissenting  opinions.  One  manufacturer  de- 
clared, among  other  things,  that  "it  is  just  as  impossible  to  enact  a 
compulsory  compensation  act  that  would  be  constitutional  as  it  would 
be  to  pass  a  valid  compulsory  arbitration  law."  "Both,"  he  insisted, 
"are  palpably  unconstitutional.  A  compulsory  compensation  act  would 
interfere  with  the  right  of  contract.     The  only  alternative,   then,   is  a 


4  LEGISLA?iVE  iRfiFERENCE  DEPARTMENT,   OHIO   STATE   LIBRARY. 

law  that  would  make  optional  the  acceptance  by  the  employer  or  em- 
ploye, and  drawn  so  that  it  would  naturally  appeal  to  both." 

Labor  organizations  seem  to  be  generally  opposed  to  the  employes" 
bearing  any  part  of  the  financial  burden  incident  to  an  accident  com- 
pensation law.  The  fund  should  be  maintained,  they  claim,  by  the  em- 
ployer, who  would  provide  for  it  by  a  slight  increase  in  the  price  of 
the  manufactured  product.  This  does  not  differ  widely  from  the  Ger- 
man theory  of  compensation  for  accidents,  although  this  theory  is  some- 
what modified  by  the  fact  that  incapacity  for  work,  resulting  from  a 
non-fatal  accident,  for  the  first  thirteen  weeks,  is  considered  sickness 
and  is  paid  from  the  sick  insurance  fund  to  which  employes  contribute. 

There  is  much  literature  on  employers'  liability  and  workingmen's 
insurance.  Two  bibliographies,  containing  extended  lists  of  references 
to  books  and  documents  on  each  of  these  subjects,  have  been  published 
by  the  Library  of  Congress.  They  may  be  had  from  the  Superintendent 
of  Documents,  Washington,  D.  C,  for  ten  cents  each.  Supplemental 
lists  in  manuscript  form,  with  references  to  magazine  articles,  may  be 
consulted  in  the  Ohio  State  Library.  We  note  here  only  a  select  few 
of  the  works  published  on  the  subject  under  consideration.  "Com- 
pulsory Insurance  in  Germany,"  fourth  special  report  of  the  U.  S. 
Bureau  of  Labor,  1892,  is  a  most  important  document  as  it  contains 
a  practically  complete  translation  of  the  German  law,  with  many  eluci- 
dating comments  and  valuable  statistical  tables.  "Workingmen's  in- 
surance," by  W.  F.  Willoughby,  a  valuable  contribution  to  the  sub- 
ject, was  published  in  1898.  Perhaps  the  best  work  available,  as  well 
for  its  intrinsic  merit  as  for  its  timely  appearance,  is  "Workingmen's 
Insurance  in  Europe,"  by  Lee  K.  Frankel  and  Miles  M.  Dawson,  is- 
sued by  the  Charities  Publication  Committee,  New  York,  1910.  It  is  a 
volume  of  477  pages,  an  illuminating  and  impartial  treatment  of  the 
subject  to  date,  with  numerous  statistical  tables,  a  biblography,  and  a 
conspectus  presenting  in  parallel  summary  the  operations  and  results 
of  workingmen's  insiu'ance  in  Europe. 

The  address  on  the  following  pages  was  delivered  by  Hon.  James 
Harrington  Boyd,  chairman  of  the  Ohio  Employers'  Liability  Commis- 
sion, at  the  recent  meeting  of  the  Ohio  State  Board  of  Commerce.  To 
this  address  are  appended  the  workmen's  liability  laws  and  the  recently 
adopted  workmen's  compensation  act  of  the  State  of  New  York,  with  a 
decision  sustaining  the  act,  the  law  providing  "accident  and  total  dis- 
ability insurance  for  coal  miners"  of  Montana,  and  extracts,  from  the 
work  described  in  the  preceding  paragraph,  on  workingmen's  insurance 
in  Germany.  It  is  hoped  that  this  publication  may  be  helpful  to  mem- 
bers of  the  General  Assembly  of  Ohio  and  that  it  may  not  be  without 
interest  to  other  citizens  of  the  state.  — C.  B.  G. 


WORKMEN'S    COMPENSATION,    OR    INSURANCE 

AGAINST  LOSS  OF  WAGES  ARISING  OUT  OF 

INDUSTRIAL  ACCIDENTS. 


By    James    Harrington    Boyd. 


INTRODUCTORY, 


James  J.  Hill,  on  September  20,  1906,  published  his  famous  memoir 
on  the  conservation  of  coal,  iron,  and  minerals  and  the  soil.  James  Gar- 
field, Theodore  Roosevelt  and  Mr.  Pinchot  have  been  advocating  the 
conservation  of  the  national  resources.  I  stand  here  today  the  advocate 
of  the  conservation  of  the  human  being,  the  conservation  of  the  laboring 
man,  who  is  the  corner-stone  of  the  state. 

The  object  of  this  address  is  to  formulate  from  an  historical, 
economic  and  statistical  point  of  view  the  problem  which  the  Legislature 
of  Ohio  has  propounded  to  the  Employers'  Liability  Commission  for  a 
solution  or  for  helps  to  a  solution. 

Employers'  liability  to  and  the  compensation  of  employes  for  in- 
juries received  in  industrial  accidents  is  an  old  problem.  It  has  its 
roots  embedded  in  a  hundred  years  of  political,  philosophical,  econom- 
ical and  legal  discussion.  The  great  philosophers,  economists  and  states- 
men under  whose  guidance  the  German  Empire  was  erected,  gave 
their  solution  of  this  problem  to  the  world  more  than  twenty  years  ago. 
All  the  nations  of  Europe  (except  Turkey),  Australia,  New  Zealand, 
and  British  Columbia,  for  some  years  have  had  their  plans  for  handling 
this  problem  in  operation.  They  have  one  and  all  abrogated  the  rules 
of  common  law  defences  excepting  malicious  negligence. 

We  approach  this  problem  under  changed  and  changing  condi- 
tions. The  world  has  grown  more  in  the  industrial  relations  during 
the  last  fifty  years  than  it  did  in  the  two  thousand  years  preceding. 
As  James  J.  Hill  pointed  out,  in  the  short  span  of  forty  years  from  to- 
day, the  United  States  will  have  a  population  of  at  least  250,000,000^. 

Already,  in  fact  we  may  say  since  1900,  our  public  domain  has 
substantially  passed  into  the  hands  of  private  ownership.  Prior  to  this 
time  a  farm  could  be  had  by  the  courageous  for  the  asking.  Under  these 
changed  economic  conditions,  the  real  struggle  for  existence  in  the 
United  States  has  begim.  It  is  intensified  by  the  addition  of  a  mil- 
lion strangers  to  our  numbers  every  year. 


'James  J.  Hill.     Address,  St.  Paul,   Sept.  20,   1910. 

(5; 


6  LEGISLATIVE   REFERENCE  DEPARTMENT,   OHIO   STATE   LIBRARY. 

Let  US  not  forget  that  in  1870,  70  per  cent  of  our  population  lived 
on  the  land  and  only  30  per  cent  in  towns  and  cities-.  But  today  more 
than  65  per  cent  live  in  towns  and  cities  and  only  35  per  cent  live  on 
the  land. 

Under  these  conditions  have  our  remedies  for  personal  injuries 
been  operating.  It  is  now  asked,  What  plan  for  compensation  of  em- 
ployes for  injuries  received  in  industrial  accidents  will  you  recommend 
for  the  immediate  and  near  future  when  we  shall  have  from  150,000,000 
to  250,000,000  inhabitants  in  the  United  States? 


Census  Report.     1870. 


workmen's  compensation,  etc. 


Under  our  common  law  procedure  and  that  of  England  an  employe 
injured  in  an  industrial  accident,  without  fault  and  able  to  prove  that  his 
employer  was  negligent,  can  recover  damages  for  his  injuries. 

The  plaintiff  cannot  recover  if  the  defendant  can  prove: 

(a)  That  the  plaintiff's  negligence  contributed  to  the  cause  of  the 
accident;  or 

(b)  That  the  negligence  of  a  fellow  servant  contributed  to  the 
cause  of  the  accident ;  or 

(c)  That  the  plaintiff  assumed  the  risk,  even  though  the  defendant 
was  negligent. 

With  what  efficiency  do  the  common  law  remedies  operate  in  com- 
pensating persons  injured  in  industrial  accidents? 

We  give  the  i-esult  of  five  investigations  of  wide  scope,  towit: 

I.  The  report  of  the  Employers'  Liability  Commission  of  New 
York  State. 

II.  The  Pittsburg  Survey,  six  volumes,  The  Russell  Sage  Founda- 
tion, 1910. 

III.  Wisconsin  Bureau  of  Labor  and  Industrial  Statistics.  Report 
for  1909. 

IV.  The  report  of  the  Employers'  Liability  Commission  of  Illinois, 
1910. 

V.  European  experience,  that  of  Germany  in  particular. 

I. 

During  the  years  of  1906-7-8  ten  insurance  companies  which  keep 
Employers'  Liability  records,  doing  business  in  New  York,  received  in 
premiums  from 

Employers    $23,524,000 

They  paid  to  injured   employes 8,560,000 

Waste   $14,964,000' 

Nothing  could  more  strikingly  set  forth  the  waste  of  the  present 
system.  Only  36.34  per  cent  of  what  employers  pay  in  premiums  for 
liability  insurance  is  paid  in  settlement  of  claims  and  suits.  Thus,  for 
every  $100  paid  out  by  employers  for  protection  against  liability  to 
their  injured  workmen,  less  than  $37  is  paid  to  those  workmen;  $63 
goes  to  pay  the  salaries  of  attorneys  and  claim  agents  whose  business 


s 


First  report  of  the  Employers'  Liability  Commission  of  New  York,    p.  31. 


8  LEGISLATIVE   REFERENCE  DEPARTMENT,   OHIO   STATE   LIBRARY. 

it  is  to  defeat  the  claims  of  the  injured,  to  the  cost  of  soliciting  busi- 
ness, to  the  cost  of  administration,  to  court  costs,  and  to  profit. 

Out  of  this  36.34  per  cent  the  injured  employe  must  pay  his  at- 
torney. The  same  report  shows  that  the  attorney  gets  26.13  per  cent  of 
what  is  paid  to  the  injured  employe.  This  investigation  covers  forty- 
six  cases  where  the  recovery  was  above  $1500  each.  In  small  recov- 
eries the  attorney  fees  take  a  larger  proportion.  This  report  shows  that 
not  more  than  somewhere  between  20  and  25  per  cent  of  the  money 
paid  by  the  employing  class  goes  actually  into  the  pockets  of  injured 
workmen  for  their  dependent  families  in  death  cases*. 

II. 

The  investigation  recently  conducted  in  Allegheny  County,  Pa., 
under  the  direction  of  the  "Pittsburgh  Survey,"  showed  that  out  of  355 
cases  of  men  killed  in  industrial  accidents,  all  of  whom  were  contri- 
buting to  the  support  of  others  and  two-thirds  of  whom  were  married, 
eighty-nine  of  the  families  left  received  not  a  dollar  of  compensation 
from  the  employer,  113  families  received  not  more  than  $100.00,  and 
sixty-one  families  received  something  more  than  this  $100.00.  In  other 
words  57  per  cent  of  these  families  were  left  by  their  employers  to 
bear  the  entire  burden  of  income  loss ;  and  granting  that  all  unknown 
amounts  zvould  be  decided  for  the  plaintiffs,  only  26  per  cent  received, 
in  compensation  for  the  death  of  a  regular  income  provider,  more  than 
$500.00,  a  sum  which  would  approximate  one  year's  income  of  the 
lowest  paid  of  the  workers  killed. 

The  proportion  of  the  loss  borne  by  employers  in  injury  cases  does 
not  differ  greatly  from  that  in  death  cases. 

Thus,  out  of  288  injury  cases,  of  the  married  men  alone,  56  per 
cent  received  no  compensation;  of  single  men  contributing  to  the  sup- 
port of  others,  69  per  cent  received  no  compensation ;  of  single  men 
without  dependents,  80  per  cent  received  no  compensation. 

III. 
The  great  financial  losses  borne  by  the  workingmen  are  set  forth  by 
the  Wisconsin  Bureau  of  Labor  and   Statistics  in  the  following  report 
of  306  non-fatal  cases  of  injuries : 

Received  nothing   from  employer 

Received  amomit  of  doctor  bill  only 

Received  amount  of  part  of  doctor  bill  only 

Received  something  in  addition  to  doctor  bills... 
Received  something  but  not  doctor  bills 

306  100.00 


Cases. 

Per  cent. 

72 

23.5 

99 

32.4 

15 

4.9 

91 

29.7 

29 

9.5 

*  First  report  of  the  Employers'  Liability  Commission   of   New^  York,    p.  31. 
"Work  accidents  and  their  costs,   by  Crystal  Eastman,    Charities  and  Com- 
mons,  Mar..  1909. 


WORKMEN  S   COMPENSATION,   ETC.  y 

In  Other  words,  we  may  say  that  in  two-thirds  of  the  cases  part  or 
all  of  the  doctor  bills  were  paid,  but  in  less  than  one-third  was  anything 
more  paid,  and  in  about  one-fourth  of  the  cases  nothing  whatever  was 
paid. 

Of  131  non-fatal  cases  in  Wisconsin,  concerning  which  reports  were 
secured  by  factory  inspectors,  the  following  disposition  was  made : 

Cases.  Per  cent. 

Received   nothing    from    employer 28  21.37 

Received    doctor   bills   only 56  42.75 

Received    something  —  doctor  bills 10  7.63 

Received  something  but  not  doctor  bills 34  25.96 

Not  settled   3  2.29 


Total    131  100.00 

IV. 

The  Employers'  Liability  Commission  of  the  State  of  Illinois  has 
recently  made  a  report  of  its  investigation  of  industrial  accidents  and 
employers'  liability  at  a  cost  of  $10,000.  I  give  you  a  condensed  state- 
ment of  the  results  of  the  investigation  of  the  Illinois  Commission  in 
the  language  of  Edwin  R.  Wright,  Secretary  of  the  Commission. 

"So  much  has  been  said  and  written  regarding  the  work  of  the  Em- 
ployers' Liability  Commission  that  I  wish  to  go  into  the  matter  at  some 
length — setting  forth  the  whole  story  in  as  few  words  as  possible. 

I'^or  the  first  time  in  the  history  of  Illinois,  if  not  in  the  United 
States,  we  have  a  text-book  on  the  subject  of  Employers'  Liability. 
]\forc  th."n  5.000  individual  accidents  were  investigated  and  recorded, 
together  with  comparative  figures  and  analyses.  A  few  words  as  to 
what  the  report  shows  may  be  of  value : 

Six  hundred  and  fourteen  fatal  accidents  are  recorded. 

The  families  of  two  hundred  and  fourteen  of  these  w'orkers  re- 
ceived nothing  in  return  for  the  loss  of  the  breadwinner. 

One  hundred  and  eleven  damage  suits  are  pending  in  court. 

Twenty-four  cases  have  been  settled  through  court  proceedings. 

Two  hundred  and  eighty-one  families  settled  direct  with  the  em- 
ployer. 

Skilled    railroad    employes,     in    settlement    for    death    claims, 

averaged    about    $1 ,000 

Steel  workers    874 

Railroad    laborers    617 

Skilled   building   tradesmen 348 

Skilled  electric  railway  employes ■ 310 

Unclassified  workmen    311 

Miscellaneous  trades    •. 292 

Packing  house   employes 234 


10  LEGISLATIVE   REFERENCE  DEPARTMENT,   OHIO   STATE   LIBRARY. 

General  laborers    154 

Mine    workers    155 

Electric    railway    laborers 75 

Teamsters    000 

Building   laborers    000 

These  figures  were  not  gathered  indiscriminately.  They  are  au- 
thentic and  have  been  carefully  verified.  No  attempt  was  made  to 
"stack  the  cards."  As  secretary  of  'the  Commission  I  knew  that  condi- 
tions were  so  bad  that  any  attempt  at  exaggeration  would  be  folly. 

A  further  summary  may  be  offered :  Of  every  loo  industrial  ac- 
cidents, fifteen  go  to  court,  seven  are  lost  and  eight  won.  Ninety-two 
injuries  out  of  every  one  hundred  receive  no  compensation.  (This  in- 
cludes both  fatal  and  non-fatal  accidents.) 

Another  interesting  feature  is  this :  A  search  through  the  record 
reveals  fifty-three  fatal  cases  of  recent  date.  In  fatal  cases,  the  usual 
defenses  of  the  employer — the  fellow-servant  doctrine,  assumption  of 
risk,  etc. — did  not  apply  or  there  would  not  have  been  a  recovery  at  all. 

For  these — the  very  pick  of  industrial  cases — the  average  recov- 
ery for  death  was  only  $1,877.36.  Of  this  an  average  amount  of  $750.95 
was  paid  to  attorneys  or  expended  in  court  fees,  etc..  leaving  an  actual 
payment  of  $1,126.41  to  the  family  of  the  dead  worker.  Thirty-four 
widows  were  compelled  to  seek  employment  and  sixty-five  children  left 
school  to  help  keep  the  wolf  from  the  door. 

Nor  is  this  the  only  complaint  of  labor.     Another  section  of  the 
report  shows  where  one  injured  workman  is  re-employed,  two  do  not 
return  to  their  former  employer.     The  average  age  of  workmen  meet-  . 
ing   with    accidents    is    thirty-two   years.      Most    of    them    are    married. 
What  becomes  of  the  injured  workman  and  his  family  God  only  knows. 

The  above  is  only  the  faintest  outline  of  the  work  of  the  Commis- 
sion. The  report  is  valuable  enough  for  every  delegate  to  take  home 
and  study.  It  means  a  direct  financial  return  to  every  citizen  of  Il- 
linois, if  the  text  is  understood.  It  means  civilization  and  progress  and 
good  citizenship.  It  means  fewer  hospitals  and  poorhouses.  It  means 
food  and  clot  lies  and  education  for  little  children. 

Issues  are  raised  and  pages  are  printed  and  speeches  are  made  on  a 
hundred  subjects  which  becloud  the  issue.  Workers  have  been  gulled 
into  following  false  prophets  into  the  wilderness  of  specious  reasoning. 
We  are  often  robbed  of  just  dues  for  our  labor,  our  liberties  are  restrict- 
ed, and  our  sensibilities  degraded,  but  until  we  crystallize  the  attention  of 
our  unions  upon  a  proper  valuation  of  human  life,  all  else  seems  futile. 
The  State  Federation  of  Labor  should  demand  the  conservation  of 
human  life,  surrounding  our  membership  with  every  known  safeguard. 
This  will  reduce  the  number  of  injuries  to  a  minimum.     Then   throw 


workmen's  compensation,  etc.  11 

the  burden  upon  the  industry.  While  we  may  not  reaHze  ideal  condi- 
tions at  once,  we  can  at  least  place  our  state  in  the  forefront  of  progres- 
sive legislation." 

V. 

In  1887  there  were  insured  in  Germany  3,861,560  workingmen 
among  319.453  establishments,  and  the  number  of  notices  of  accidents 
was  1 06, 10  r. 

Tlie  German  analysis  of  the  15,970  accidents  which  incapacitated 
workmen  for  more  than  thirteen  weeks,  shows : 

That  19.76  per  cent  of  the  15,970,  or  3,156  injuries,  were  attribut- 
able to  the  fault  of  the  employers. 

That  25.64  per  cent  of  the  15.970,  or  4.094  injuries,  were  attri- 
butable to  the  fault  of  the  injured. 

That  54.60  per  cent  of  the  15,970,  or  8,720  injuries,  were  attri- 
butable to  the  fault  of  the  injured  and  employer  and  inevitable  risk  when 
at  work*^'. 

Thus  80.24  P<?i'  ^'^"t  of  15.970  of  12,834  injuries  were  attributable 
to  the  fault  of  the  employe  and  the  inherent  dangers  of  the  industry. 
Now  18.51  per  cent  of  these  12,834  were  killed,  2,375. 
18.70  per  cent  of  these  12,834  were  totally  disabled,  2,272. 
50.88  per  cent  of  these  12,834  were  partly  disabled,  6,590. 


"Fourth  special  Report  of  the  Commissioner  of  Labor,   1893,   p.  83. 

CAUSES  OF  ACCIDENTS  IN    1887. 
Cause  attributable  to  : 

Fault  of  the  employer:  Per  cent.  Number. 

Insufficient   apparatus    for   protection 10.64  1,700 

Defective   arrangement   for   carrying  on  business 7.03  1,122 

Lack  of  directions  or  improper  ones 2.09  334 

Total    19.76  3,156 

Fault  of  the  injured  : 

Awkwardness   or   inattention 16.49  2,634 

Disobedience  to   orders    5. 17  825 

Heedlessness    1.98  316 

Failure  to  make  use  of  protective  ap])aratus 1.76  281 

Unsuitable    cl -thing-    .24  38 

T.ital    25.64  4.09} 

Fault  of  the  employed  and  injured 4.45  711 

Fault  of  third  i)erson.    particularly  a  co-laborer 3.28  524 

No   fault  which  can  be  assigned 3 .47  554 

Inevitable  risk  when  at  work .' 43. -10  6,931 


12  LEGISLATIVE  REFERENCE  DEPARTMENT,   OHIO   STATE   LIBRARY. 

12.91  per  cent  of  these  12,834  were  incapacitated  for  a  time  longer 
than  thirteen  weeks,  1,657'. 

It  follows  therefore  that  out  of  15,970  employes  whose  injuries 
lasted  more  than  thirteen  weeks,  the  common  law  remedies  would  give 
3,156  employes  such  compensation  as  a  jury  would  assess  after  a  trial 
and  all  appeals  were  settled.® 

But  the  common  law  does  not  pretend  to  compensate  dependents 
of  the  2,375  killed  in  these  accidents  where  the  cause  of  death  could 
not  be  attributed  wholly  to  the  fault  of  the  employer.  Nor  does  the 
common  law  pretend  to  compensate  the  2,272  injured  workmen  who 
were  disabled  for  life,  the  fault  not  being  attributable  to  the  employer. 

Nor  does  the  common  law  offer  any  remedy  for  compensating  the 
6,590  injured  workingmen  who  were  partially  disabled,  the  fault  there- 
of not  being  traceable  to  the  employer. 

The  state  of  Ohio  now  says  that  when  10,459  helpless  and  crippled 
persons  and  the  dependents  of  2,375  workmen  deceased  have  become 
paupers  it  will  house  them. 

It  is,  therefore,  the  duty  of  the  state  to  provide  by  industrial  in- 
surance or  compensation  act,  the  means  whereby  80  per  cent  of  all 
workingmen  who  are  now  unable  to  do  so  may  protect  themselves 
against  the  inevitable  calamities  of  industrial  activity.  It  is  the  duty 
of  the  state,  to  conserve  the  self-respect  of  the  family  which  is  the  unit 
of  the  state. 

The  bulletin  for  the  Bureau  of  Labor  for  January,-  1908,  gives  on 
page  120  the  statistics  of  46,000  industrial  accidents  collected  by  the 
German  imperial  insurance  office. 

The  classification  of  the  causes  of  the  accidents  is  as  follows : 

Per  cent. 

1.  Due  to  negligence  or  fault  of  employer 16.81 

2.  Due  to  joint  negligence  of  the  employer  and  injured  employee 4.66 

3.  Due  to  negligence  of  co-employes   (fellow  servants) 5.28 

4.  Due  to  "Acts  of  God" 2.31 

5.  Due  to  fault  or  negligence  of  employee 28.89 

6.  Due  to  inevitable  accidents  connected  with  the  employment 42.05 


Total   100.00 

'The  result  to  the  injured  in  the  15,970  cases  are  as  follows: 

RESULTS  OF  ACCIDENTS  IX   1 887. 

Result  caused.  Per  cent.  Number. 

Death    18.51  2,956 

Lasting  incapacity  for  work. 

Entire    17.70  2,827 

Partial    50.88  8,126 

Total 68.58        10,953 

Incapacit}'  for  a  time  longer  than  thirteen  weeks 12.91  2,061 

«Schonberg,   Handbuch  XXII,   pp.  737-748. 


workmen's  compensation,  etc.  13 

These  figures  grouped  to  correspond  to  those  for  one  year,  1887, 
are: 

1.  Cause  of  accident  attributable  to  employer 16.81 

2.  Cause  of  accidents  attributable  to  employee 28.89 

3.  Due  to  the  inherent  risks  of  the  business 64.30 

Total   100.00 

The  agricultural  laborers  were  admitted  to  insurance  after  1887, 
and  the  act  was  made  to  cover  a  large  additional  class  of  less  intel- 
ligent laborers. 

The  19,000,000  workingmen  who  earn  on  an  average  less  than  $500 
per  annum,  with  their  families,  represent  a  population  of  60,000,000 
people. 

They  do  most  of  the  work  of  the  nation.  They  represent  the  pre- 
ponderance of  its  political  power,  they  are  the  state,  they  cannot  pro- 
tect themselves  against  80  per  cent  of  the  injuries  received  in  industrial 
accidents  and  against  the  consequent  poverty. 

The  state  must  provide  a  new  remedy  to  correct  the  evils  for  which 
up  to  date,  the  laws  of  the  state  furnish  no  remedy. 

"He  that  taketh  away  his  neighbor's  living  slayeth  him ;  and  he  that 
defraudeth  the  laborer  of  his  hire  is  a  blood-shedder." 

Every  civilized  nation  has  decided  that  the  product  of  labor  of  a 
given  generation  must  support  all  diu'ing  that  time^. 

Looked  at  from  a  purely  commercial  standpoint,  that  of  the  rearing 
of  men  and  women  for  the  purpose  of  productive  laborers,  the  elements 
of  cost  and  waste  have  been  studied  with  accurate  results. 

There  is  the  rearing  of  children  to  the  age  of  self-support,  with 
the  result  that  13  per  cent  die  during  that  period;  during  the  assumed 
productive  life  of  wage-earners,  it  is  estimated  that  the  loss  from  death 
is  25  per  cent  in  the  United  States^".  The  loss  through  sickness  is  6 
percent^^.  Then  you  must  add  cost,  in  money  and  time,  of  accidents 
and  the  support  of  the  aged. 

Under  these  conditions  it  is  claimed  that  the  contract  of  labor, 
through  some  inadvertence  is  made  as  though  sickness,  accident,  in- 
validity, and  old  age  had  been  permanently  banished  from  the  earth ; 
that  the  daily  wage  is  sufficient  only  for  daily  necessities ;  that  a  man 
entitled  to  support  for  a  lifetime  unwillingly  consents  to  a  wage  based 
upon  a  portion  of  that  lifetime,  for  the  competition  in  the  field  of  labor 
is  among  the  strong,  the  able  bodied,  the  efficient^-. 

We  are  surprised  when  told  that  Germany's  poorer  classes,  though 
less  favored  by  circumstances,  maintain  a  higher  level  of  well  being  and 


*F.  A.  Walker,  The  wage  question,  p.  34. 
'"F.  A.  Walker,  Wages,  p.  35. 
"  C.  S.  Loch,   Insurance  and  savings,   p.  50. 
"A.  W.  Lewis,   State  Insurance,  p.  7. 


14  LEGISLATIVE   REFERENCE  DEPARTMENT,    OHIO   STATE   LIBRARY. 

far  higher  level  of  vitality  than  those  of  the  United  States  and  Eng- 
land^^ 

In  industries  outside  of  agriculture,  for  the  sake  of  comparison  we 
might  take  $600  per  annum  as  a  minimum  wage,  based  upon  a  family  of 
five". 

In  Massachusetts  during  a  period  of  great  prosperity  with  the 
necessary  attendant  cost  of  living,  out  of  300,000  adult  workmen  only 
two-fifths  received  as  much  as  twelve  dollars  per  week.  Making  only 
proper  allowance  for  unemployment,  this  would  amount  to  considerably 
less  than  $600  per  year^^.  It  has  been  said  that  the  18,000,000  wage- 
earners  of  the  United  States  receive  an  average  wage  of  only  v$40o  per 
annum.^'' 

It  is  said  that  one-half  of  the  families  of  the  country  and  nine- 
tenths  of  those  in  the  cities  and  industrial  communities,  are  property- 
less;  that  in  a  group  of  states  including  IMassachusetts,  one-fifth  are  in 
poverty^^;  that  one-twentieth  are  paupers^^;  that  one-eighth  of  the  fam- 
ilies hold  seven-eighths,  and  one  per  cent  hold  over  one-half  of  the  prop- 
erty of  the  country^** ;  and  that  71  per  cent  of  the  people  hold  but  5 
per  cent  of  the  wealth-";  that  one-eighth  of  the  families  receive  over 
one-half  of  the  total  income,  and  that  two-fifths  of  the  better  paid 
laborers  receive  more  than  the   remaining  three-fifths-\ 

We  can  derive  no  comfort  out  of  the  statistics  of  Savings  Bank 
Deposits.  Take  Massachusetts  where  there  seems  to  be  an  average  de- 
posit of  about  $300.  Investigation  shows  that,  while  far  the  largest 
number  of  deposits  belong  to  the  wage-earning  class,  the  deposits  of 
thirteen-fourteenths  of  the  whole  number  are  but  slightly  larger  than 
those  of  the  remaining  one-fourteenth ;  that  in  a  typical  bank  the  aver- 
age deposit  of  wage  earners  was  less  than  $75"". 

In  England  "it  took  twenty-five  years  of  legislation  to  restrict  a 
child  of  nine  to   sixty-nine   hours   per   week."-^     "It   took   seventy-five 


"A.  Shodwell,  Industrial  hisurance.  v.  2,  p.  453. 

"J.  A.  Ryan,  A  living  wage.   p.  1-jO. 

^^  Compare  Massachusetts  labor  bulletin.  No.  44,  Dec.  1006,  p.  430,  with 
thirty-seventh  annual  report,  1906.  Massachusetts  Bureau  of  Statistics  of  Labor, 
pp.  279-281. 

"Address  before  American  Association  for  Advancement  of  Science,  Dec. 
27,   1906,  by  H.  L.  Call. 

'•Hunter,  pp.  43-GO. 

'^  R.  T.  Ely  in  North  American  Review,    v.   1-V2.    p.  398. 

"  C.  P.  Spahr,   Present  distribution  in  wealth  in  the  United  States,   p.  69. 

■"  G.  K.  Holmes  in  Political  Science  Quarterly,  v.  HI,  p.  593. 

^  G.  K.  Holmes  in  Political  Science  Quarterly,  v.  Ill,  pp.  128-9. 

■^Massachusetts  Bureau  of  Labor  Statistics,  third  annual  report,  pp.  304-13; 
fourth  annual  report,  p.  192. 

^Hutchinson  and  Harrison,  p.  21. 


WORKMEN  S   COMPENSATION,   ETC. 


16 


years  to  ascertain  that  the  factory  act,  instead  of  weakening,  had 
strengthened  her  in  the  world's  rivalry."-* 

The  assumption  of  any  function  by  the  state,  Hke  that  of  compul- 
sory public  education,  is  based  upon  higher  grounds  than  compassion 
for  a  class.  On  what  grounds  does  the  state  regulate  the  cholera,  Bu- 
bunic  plague,  and  build  and  maintain  institutions  for  paupers  and  for 
the  insane  ?  Why  not  begin  higher  up  and  prevent  pauperism  and  as- 
sist those  who  do  the  work  of  the  nation  and  must  fight  its  battles,  who 
cannot  protect  themselves  from  having  an  eye  put  out  or  an  arm  or  leg 
cut  ofif  or  their  lives  crushed  out? 

The  following  table  gives  the  percentage  of  accidents  by  days  of 
the  week  for  the  years  1890  and  1892.  The  figures  of  1890  were  drawn 
irom  a  table  prepared  by  M.  Bellom,  in  Etude  de  la  Statistique  des  Ac- 
cidents en  Albemague;  those  for  1892,  from  a  guide  concerning  the 
workmen's  insurance  of  the  German  empire,  prepared  for  the  world's 
exhibition  in  Chicago  by  Air.  Zacher. 


FOURTH    SPECIAL    REPORT    OF   THE    COMMISSIONERS    OF    LABOR 1893,    PAGE 

102.       PERCENTAGE    OF    ACCIDENTS    BY    DAYS    OF    THE    V^EEK. 


Percentage. 


Day. 


Sunday  . . . 
Monday  . . 
Tuesday  . 
Wednesday 
Thursday 
Friday  . . . 
Saturday    . 

Total 


2.67 
16.75 
15.50 
16.38 
15.50 
16.60 
16.69 


100.00 


Whatever  the  cause  it  is  clear  that  the  mechanical  appliances  have 
their  limits,  be  they  ever  so  much  multiplied.  This  brings  up  the  ques- 
tion, which  is  steadily  gaining  in  prominence,  how  can  all  this  external 
protection  be  used,  not  only  to  guard  him  from  without,  but  to  become 
a  part  of  an  educational  influence  that  shall  mould  tlie  character  of  the 
man  ?  It  is  not  expected  that  much  can  be  done  with  the  older  laborers, 
but  it  is  evidently  an  increasing  purpose  of  this  social  legislation  to  use 
the  whole  machinery  educationally.  The  spread  of  lectures  already  re- 
ferred to  is  a  part  of  this  purpose,  as  is  also  the  sending  from  the  im- 
perial bureau  of  circular  letters  to  the  trade  associations,  calling  atten- 


Traill,   Social  England,   v.  ^T,    p.  825. 


16  LEGISLATIVE   REFERENCE  DEPARTMENT,   OHIO   STATE   LIBRARY. 

tion,  not  merely  to  the  external  measures  of  safety,  but  also  to  measures 
thai  are  essentially  educational  in  thei'r  nature. 

It  is  also  a  tribute  to  the  influence  of  this  law  that  great  numbers 
of  the  employing  class  in  the  trade  association  are  actively  interesting 
themselves  in  extending  information  and  discovering  new  and  more  ef- 
ficient measures.  A  fair  example  of  this  interest  may  be  seen  in  the 
action  taken  by  the  trade  association  in  Hamburg,  June  lo,  1-892.  A 
resolution  was  adopted  to  do  all  in  their  power  to  have  exhibited  in 
graphic  and  tabular  form  at  the  Chicago  Exposition  all  that  could  be 
shown  "in  picture"  of  the  sick  and  old  age  insurance,  besides  extensive 
illustration  by  models  of  the  actual  working  of  the  accident  law.  The 
'opinion  was  heartily  indorsed  that  the  scheme  was  practicable,  as  the  ex- 
hibition of  prevention  of  industry  accidents  in  Berlin  had  shown. 

The  invalidity  and  old  age  insurance,  established  January  i,  1891, 
by  imperial  law  of  June  22,  1889,  comprises  the  working  people  of  all 
trades  in  territorial  organizations  (differing  from  accident  and  sickness 
insurance  restricted  to  branches  of  trade)  and  promises  when  in  state  of 
permanence  on  every  one  hundred  insured,  one  old  age  and  eleven  in- 
validity pensioners,  i.  e.,  out  of  50,000,000  population  to  about  1,500,000 
persons  the  benefit  of  330,000,000  marks  ($78,540,000)  annuities. 

The  foregoing  statement,  with  all  the  figures,  was  taken  from  a 
pamphlet  entitled  "The  workmen's  insurance  of  the  German  empire," 
a  guide  expressly  prepared  for  the  World's  Exposition  in  Chicago,  by 
the  imperial  insurance  department  in  Berlin,  1893.  The  work  was  com- 
piled by  Dr.  Zacher,  permanent  member  of  the  imperial  insurance  de- 
partment. The  figures  as  far  as  they  relate  to  the  results  for  the  year 
1892  are  round  numbers,  and  of  course  only  estimates.  They  are,  how- 
ever, estimates  which  have  the  weight  of  the  highest  official  authority. 

The  few  short  tables  which  follow  show  results  not  exactly  in 
agreement  with  the  figures  published  by  the  imperial  insurance  depart- 
ment and  just  quoted.  There  is  also  a  slight  variation  between  the 
table,  statistics  of  accident  insurance  in  1891,  by  industries,  and  the 
tables  on  page  20.  These  tables  are  given  however,  as  they  contain  the 
most  accurate  information  available  in  regard  to  the  points  of  which 
they  treat. 


WORKMEN  S   COMPENSATION,   ETC. 


17 


FOURTH  SPECIAL  REPORT  OF  THE  COMMISSIONER  OF  LABOR— 1893. 

PAGE  279. 

COST  OF  INSURANCE  AND  RISK  IN  ACCIDENT  INSURANCE  ASSOCIATIONS,    BY 

INDUSTRIES. 

(From  etude  Statistique  des  Accidents  du  Travail,  Office  du  Travail,  1892. 
Resultats  Financiers  de  I'Assurance  Obligatoire  centre  les  Accidents  du 
Travail,  Paris,  Office  du  Travail,  1892.) 


Industry. 


Driving  of  vehicles 

Brewing    

Flour   mills    

Quarrying     

Mining    

Packing  and  despatch  of  goods 

Paper  making   

River   navigation    

Maritime    navigation    

Well    digging    

Railw^ay  transportation    (private) 

Sugar  refining    

Chimney   sweeping    

Building    

Distilling     

Wood  cutting  and  carving 

Chemical   industries    

Iron    and    steel 

Gas  and  water  works 

Tramways   

Brick  and  tile   making 

Food  purveying   

Leather   work    

Glass    

Textile   trades    

Musical    instrument    making 

Metal  work   (precious  and  other  metals) 

Stationery    

Mechanical    instrument    making 

Pottery    

Printing    

Clothing    

Silk    

Tobacco   


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18 


LEGISLATIVE   REFERENCE  DEPARTMENT,   OHIO   STATE   LIBRARY. 


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l~  to  lO  O  CO  C5 
10  <-H  !M  Ol  CO  ^T' 
CO  CM  to  ^?<  CO  O 

"5  0>  -*  ^]  O  O 
i-H  (M  ■— I  ■—!  "-H  CO' 


Siuappoy 


•pajnfui  suosj3(j 


CS  C30  •— I  00  CO'  CO 

<X)  "-H  00  c;  c:  CO 

i-H  CM 


C^]  LO  CM  C:  to  00 

00  ^  CS  Ci  l~  CO 

CO  t-  -^i  ci  c;  <M 

10  -^  »0)  CO  r*  CM 


■s;u3mqsiiqE;s2 


'tH  ^  C-.  -^  CO  CO 

iO  to  c;  -r  CO  o> 

'Tf  c:  ■— I  ~  ^r  ^ 


o 

1-H 

H 
U 
W 
CO 


CO 


CM 


00 

<o 

T— t 


o 


to 


CO 

<z> 

c: 

00 
o 


<M 


CM 

O 
00 

to" 
o 


c?> 
CO- 


WORKMEN  S   COMPENSATION,   ETC. 


19 


COST  OF  ADMINISTRATION  OF  ACCIDENT  INSURANCE,    BY  INDUSTRIES. 
(From  official  statistics  for  1891,  published  by  the  imperial  insurance  office,  Berlin.) 


Industry. 


Cost  of  Administration. 


en 

u 

u 


Ph 


Ol 


u 

p^ 


n 


C 
<u     • 

fcuc 

(L,    ^ 

Ph 


Mining   

Quarrying    

Mechanical  insarument  making 

Iron  and  steel 

Metal  work  (precious  and  other  metals) 

Musical   instrument   making 

Glass  

Pottery    

Brick  and  tile  making 

Chemical    industries    

Gas  and  water  works 

Textile  trades  

Silk 

Paper   making    

Stationery    

Leather  work    


Wood   cutting   and   carving. 


Flour   mills 

Food   purveying    

Sugar   refining    

Distilling    

Brewing    

Tobacco    

Clothing    

Chimney   sweeping 

Building    

Printing   

Railway  transportation    (private) 

Tramways    

Packing  and   despatch   of  goods. 

Driving   vehicles    

River  navigation    

Maritime    navigation    

Well    digging    


$0.13804 
.  16G80 
. 19992 
. 17374 
.11602 
.17374 
.17136 
.08568 
.10710 
.32844 
.29274 
.08092 
.05474 
.24752 
.17374 
. 18802 
.21896 
.53550 
. 17374 
.  1.3328 
.34986 
.39984 
.05236 
.05950 
.81158 
.20706 
. 13090 
.14042 
. 14754 
.65121 
.65212 
.38794 
.33320 
.22134 


$28.06496 
2.74176 
5.68344 
9.40576 
2.84172 
4.98134 

13.51126 
5.83338 
2.16104 
6.29272 
6.93056 
7.07812 
3.55096 

11.25264 
5.05750 
3.59856 
1.35422 
1.23046 
.85443 

28.54096 
1.81356 
5.15746 
1.20904 
2.08726 
1.46608 
1.55890 
2.13010 

32.78450 

23.85712 
1.69218 
1.70408 
1.47.560  i 
8.45378 
2.93454 


$1.73740 

9.96744 

9.51048 

2.91312 

7.27090 

15.25818 

10.20754 

10.19830 

10.95990 

7.38990 

6.66400 

6.82.584 

9.97934 

7.77308 

14.14434 

12.25224 

6.12136 

19.61120 

8.66320 

5.60728 

15.55092 

5.56920 

19.90632 

8.99402 

55.42544 

8.90596 

13.143236 

3.22490 

4.62672 

7.57316 

19.08760 

12.13324 

7.71358 

12.49500 


.014994 

.049742 

.022610 

.020230 

.015232 

.024990 

.025228 

.012852 

.027370 

.039984 

.029512 

.01428U 

.008092 

.041412 

.024038 

.02.3324 

.032844 

.086632 

.024038 

.031892 

.054740 

.040698 

.010710 

.010472 

.135422 

.038794 

.01532 

.016660 

.030226 

.043554 

.102102 

.056406 

.056644 

.047362 


20 


^Legislative  reference  department,  ohio  state  library. 


PERSONS    insured    AND    ACCIDENTS    COMPENSATED    BY    ACCIDENT    ASSOCIA- 
TIONS,   1890,    189I    AND    1892. 

(The  statistics  for  1890  and  1891  are  from  the  official  statistics  of  the  im- 
perial insurance  office,  published  December  6,  1892;  those  for  1892  are  from  The 
Workmen's  Insurance  of  the  German  Empire,  published  by  the  imperial  insurance 
office,   Berlin.) 


Kind  of  association. 


t 

rt 

M-l 

ui 

0 

C 

0 

u 

•*j 

(U 

rt 

^ 

0 
0 

s 

3 

CO 

12; 

a 
u 

S 

in 

3 
W 


to 

C 

o 
;h 

V 


0 
u 

c  a 
'O  c 


Trade  Associations : 

1890  

1891  

1892  

Office  for  state  works : 

1890  

1891  

1892  

Total : 

1890  

1891  

1892  


112 
112 
112 


5,234,243 
5,181,761 
5,182.000 


316  1 1 

352    1 

356    i 


428 
464 
468 


5,234,243 
5,181,761 
5,182,000 


13,015.370  I 

17,382,827  |  128,584 
17.400.000  !  166,100 

I 

604,380  ! 

632,459  I   8,956 
600,000  I  10,900 

13,619,750  I 

18,015,286  I  137,540 
18,000,000  I  177,000 


RECEIPTS,    EXPENSES,    AND    FUNDS    OF    ACCIDENT    AS.SOCI.XTIONS,    189O,     1 89 1 

AND    1892. 

(The  statistics  for  1890  and  1891  are -from  the  official  statistics  uf  the  im- 
perial insurance  office,  published  December  6,  1892;  those  for  1892  are  from  The 
Workmen's  Insurance  of  the  German  Empire,  published  by  the  imperial  insurance 
office,   Berlin.) 


Kind  of  associations. 

Receipts. 

Expenses. 

Funds. 

Trade    associations : 
1890 

$10,571,113,910 
12,813,421,152 
15,470,000,000 

457,768,962 
577,825,206 
714,000,000 

$8,733,864,818 
10.353,125,664 
12,138,000,000 

457,768.963 
577,825,206 
714.000.000 

1891    

$19,423,238,786 

1892    

24.038,000.000 

Offices  for  state  works : 
1890 

1891 

1892                           

Total : 

1890        

11,028.882.872       9.191.633,780 

1891    

1892    

13,391.246,358 
16,184,000,000 

10.9.30.9.50.870 
12,852.000.000 

19.423,238.786 
24,038,000,000 

WORKMEN  S   COMPENSATION,   ETC. 


21 


If  we  bring  the  three  laws  under  a  common  schedule  it  appears, 
according  to  Dr.  Zacher's  statistics  for  1892,  that  the  receipts  and  ex- 
penses under  the  three  laws  were  as  follows : 


SUMMARY  OF   INSURANCE    IN    GERMANY    FOR    1892. 

(The  round  numbers  are  estimated,  as  the  financial  statement   for   1892  was  not 

yet  settled,  January,  1893.) 


Insurance  against: — 

Persons  insured,    receipts, 
expenses,   etc. 

Sickness. 

Accident. 

1 

Old    age    and 
invalidity. 

Persons    insured 

a7, 723, 000 
2,752,000 

$7,378,000.00 

18,445,000.00 

e31, 410,000. 00 

22,610,000.00 
gl,  175, 600. 00 

b 18, 000. 000 

210,000 
1 

$12,852,000.00 

ell, 200, 000 

187  800 

Persons  reheved   (d^  

Receipts : 

Contributions  of  employers 

Contributions  of  employed 

Total 

$11,275,250.00 
11.275  250  00 

el6, 184,000.00 

7,735,000.00' 
£rl.761.200.00 

25,751,600.00 

Expenditures: 

Benefits  

Administration                   

f 5, 331, 200. 00 
gl, 006. 240  00 

Total   

h29,5r'>,000.00    hl2.852.000.00 

h25, 75 1,600. 00 

Accumulate  funds 

Benefit  per  case 

Charges  per  person 

i26. 180.000.00 

8.3:j 

3.332 

124.038.000.00 

44.03 

.714 

i38,758,300.00 
f28.56 
f2.142 

a.  Persons  employed  for  wages  or  salary  in  trade  and  commerce,  partly  in 
agriculture    (forestry)   and  domestic  service. 

b.  Persons  employed  in  industry  and  agriculture  (forestry) — not  in  com- 
merce, handicrafts,  and  petty  trades  —  including  about  4,000,000  small  farmers 
(with   areas   under   24.71    acres)    and    as   many   persons    insured    in   Setaoineta    or 

double  employments. 

c.  Workers  of  all  trades  and  servants,  likewise  (industrial  and  agricultural) 
officials  and  commercial  assistants  with  regular  year's  earnings  up  to  $470. 

d.  Persons  having  received  legal  assistance  in  money  or  in  kind  (free  medical 
or  hospital  treatment,  medicines,  etc.)  provided  by  the  workmen's  insurance  laws 
for  disability  caused  by  sickness,   accident,   invalidity,   old  age. 

e.  Including  balance  on  hand  at  the  commencement  of  the  year,  and  interest 
on  investments. 

f.  Including  state  subsidies. 

g.  Including  the  current  costs  of  the  whole  organization, 
h.     Including  the  year's  addition  to  the  funds. 

i.     Provided  by  law   in   order  to   secure   the  payments  named. 


22 


LEGISLATIVE   REFERENCE  DEPARTMENT,    OHIO    STATE    LIBRARY. 


FOURTH   SPECIAL  REPORT  OF  THE  COMMISSIONERS   OF   LABOR  — 

1893.     PAGE  280. 

STATISTICS  OF  ACCIDENT  INSURANCE  IN    189I,   BY  INDUSTRIES. 
(From  official  statistics  for  1891,  published  by  the  imperial  insurance  office,  BerHn.) 


Industry. 


c 
w 

p 

to 

.4-1 
in 

w 


3 


u 


B 

o 
o 


o    -r. 

< 


o 


(L) 
in 

c 
W 


Mining   2,0(0 

Quarrying   15,383 

M  e  c  h  a  nical  in- 
strument mak- 
ing    2,258 

Iron  and  steel 23,834 

Metal  work  (pre- 
cious and  other 

metals) !  4,3191 

Al  u  s  i  cal  instru- 
ment  making...  824 

Glass  716 

Pottery    897 

Brick    and    tile 

making    .......  12,547 

Chemical  in- 
dustries      5,273 

Gas    and    water 

works    1 ,  138 

Textile  trades....  9,342 

Silk 666 

Paper  making. .. .  1,287 

Stationery   2,072 

Leather  work 2 ,  424 

Wood  cutting  and 

carving  34 ,  442 

Flour  mills 37,637 

Food  purveying..  11,738| 

Sugar  refining....  464 

Distilling   8,028 

Brewing  5,635 

Tobacco  4,708 

Clothing    2,967 

Chimney  sweep- 
ing    3,215 

Building  120,118 

Printing  4,295 

Railway  transpor- 
tation  (private)  116 

Tramways  197 

Packing  and  des- 
patch of  goods.  19,599 
D  r  i  V  ing  of   ve- 
hicles   ....|  26.551 

River  navigation.  16,276 
Maritime   naviga-  | 

tion    I  1,711 

Well    digging I  12,504 

Agriculture    and] 

forestrv  I  4,776,520 


421,137 
253,250 


64.172 
592,783 


101,966 

23,557 
56,357 

60,455 

254,102 
101,134 


5,8041 

992,7351 

69,806! 

26,8861 
31,8531 


69,3971 
■  55,1571 

43,3001 
164,9931 


13 , 255 
4,297 


665 
15,104 


990 

188 
510 
381 

2,278 

2,410 


26,873 

463 

601,764 

6.106 

43,899 

160 

58,489 

1,718 

60,668 

553 

46,289 

657 

214,596 

6,295 

86,439 

2,729 

58,161 

977 

99,097 

1,665 

41,569 

913 

72.517 

3,142 

109,111 

176 

104,748 

540 

52 

17,259 

424 

568 
218 


80,3481      2,527 


2,181 
1,039 

740 
3,066 


12,289,4151     34,338 


$1,667,818 
456,864 


80,158 
1,500,961 


105,518 

18,565 
55,513 
41,294 

252,186 

303,276 

81,323 
461,684 

17,770 
149,561 

69,074 

72,223 

475,198 

316,541 

80.938 

160,533 

107,181 

385,920 

26,297 

41,825 

16,708 

1,918,254 

51,249 

72,721 
36,510 

481,375 

265,857 
149,387 

105,443 
1,346,3071 


$l,549,143i$3,646,979 
369,030       783,152 


57,874        125,440 
1,336,2491  2,834,051 


83,773 

18,216 
50,431 
30,678 

212,108 

258,024 

63,831 
388,7101 

14,2201 
131,711] 

40,4561 

62,654 

445,705 
248,685 

75, 864 I 
141,581 

84.424 
343,6161 

16.973 

38,733 

10,527 

1.824,304 

42,202 

72,721 
29,360 

289,681 

I 
232,1211 
123,6641 

I 

87,8271 

265,0841 


184,19!) 

28,154 
95,011 
63,217 

371,120 

524,808 

132,487 

846,332 

27,433 

278,612 

87,960 

112,051 

839,319 
527,784 
122,313 
296.947 
166,736 
931,257 
34,622 
56,207 

20,505 

3,110,244 

76,279 

152,911 
77,843 

518,571 

329,838 
225,686 

132,952 
1,179,738 


1,463,3341  1,334,8881      572,668 
I  I 


workmen's  compensation,  etc.  23 

Dr.  Zacher  says  that  already  "in  tlie  few  years  since  these  measures 
became  law  nearly  a  thousand  millions  of  marks  ($238,000,000) — al- 
most one-half  contributed  by  the  employers — have  been  expended  in  the 
interests  of  the  workingmen."  He  says  of  the  old  age  and  invalidity  in- 
surance alone  that  eventually  1,500,000  persons  will  get  annuities  to 
the  amount  of  330,000,000  marks   ($78,500,000). 

It  is  true  that  the  number  of  recipients  reaches  the  high  tigure  43,- 
149,800  (2,752,000  sick  causes,  210,000  accidents,  and  187,800  old  age 
pensioners).  If  the  whole  amount  spent  in  relief,  $35,676,200,  is  divided 
among  so  vast  a  number,  the  average  benefit  per  person  is  exceedingly 
small — a  trifle  over  $11  each.  The  amount  does  not,  however,  affect 
the  nature  of  the  problem.  Even  if  $100,000,000  are  eventually  dis- 
tributed under  these  three  laws,  where  is  the  ultimate  burden  finally  to 
fall  ? 

If  the  larger  portion  of  the  burden  could  be  kept  upon  the 
shoulders  of  the  well  to  do  and  the  machinery  of  expenses  economically 
administered,  clearly  the  insured  working  classes  could  maintain  by  their 
wage  a  higher  standard  of  comfort. 

The  difficulty  of  the  answer  begins  at  this  point.  The  relation  of 
direct  to  indirect  taxation  alone  makes  anything  like  a  definite  answer 
impossible,  if  no  other  difficulty  wdiatever  were  in  the  way.  It  is  main- 
tained by  some  authorities  that  the  dift'erent  uses  to  which  direct  and  in- 
direct taxes  are  put  prove  that  the  indirect  taxes  will  have  to  take  the 
larger  burden  of  such  portion  of  the  insiu'ance  fund  as  is  brought  into 
the  cpiestion  at  issue. 

REMEDIES. 

Let  us  turn  our  attention  for  a  moment  to  remedies.  The  Ger- 
man plan  of  insurance  against  sickness,  accidents,  invalidism  and  old 
age  in  industrial  pursuits  has  paid  out  during  the  last  twenty  years, 
ending  in  1903.  $802,000,000.  Of  this  total  sum,  $555,750,000  was  paid 
on  account  of  sick  insurance,  $232,750,000  on  account  of  accidents  and 
$13,500,000  on  account  of  invalidism  and  old  age. 

To  the  fund  necessary  to  make  these  payments  the  employer  con- 
tributed $424,500,000.  The  employes  contributed  $377,000,000,  and  the 
Imperial  Government  paid  the  entire  cost  of  administration  and  a  small 
portion  of  the  funds  necessary  to  take  care  of  invalidism  and  old  age. 

The  general  rules  are,  in  respect  to  the  raising  of  the  insurance 
fund,  that  the  employes  shall  pay  two-thirds  of  the  fund  necessary  to 
take  care  of  sick  insurance  which  lasts  for  thirteen  weeks,  and  the  em- 
ployers pay  one-third.  In  the  case  of  accident  insurance  the  employers 
pay  substantially  all  of  it.  In  the  case  of  invalidism  and  old  age  insur- 
ance the  Imperial  Government  pays  $12.50  for  each  person  injured  and 
the  remainder  of  the  fun<l  is  jiaid  half  and  half  by  the  employers  and 
employes. 


24  LEGISLATIVE   REFERENCE  DEPARTMENT,   OHIO   STATE   LIBRARY. 

The  German  plan  in  1907  had  27,172,000  workmen  insured  against 
sickness,  accidents  and  old  age  out  of  a  population  of  60,000,000  of 
people. 

The  English  plan  under  which  13.000,000  workmen  are  insured  may 
b'e  briefly  stated.  In  case  of  death,  the  compensation  paid  is  at  most 
three  years'  wages  of  300  pounds  $1,460,  with  a  minimimi  payment  of 
three  years'  wages  of  150  pounds  ($730). 

In  case  of  disability  which  lasts  longer  than  one  week,  the  com- 
pensation paid  is  one-half  week's  average  wage,  not  to  exceed  $4.87, 
as  long  as  the  disability  lasts.  Responsibility  for  the  payment  of  the 
compensation  rests  solely  on  the  employers  and  they  are  not  required 
to  insure.  In  both  the  German  and  English  plan  the  rules  of  con- 
tributory negligence,  assumption  of  risk,  and  the  fellow  servant  rules 
are  abolished,  and  the  only  kind  of  negligence  recognized  is  that  of 
malicious  negligence  on  the  part  of  the  employer  or  the  employee. 

Some  fundamental  facts  which  seem  to  be  overlooked  in  almost 
every  instance,  are  worth}-  of  consideration.  Even  the  statistics  of  the 
United  States,  in  so  far  as  they  are  available,  show  that  over  fifty  per 
cent  of  all  industrial  accidents  are  due  to  the  inherent  dangers  and 
risks  of  the  industrial  business,  that  not  to  exceed  twenty  per  cent  of  all 
these  accidents  are  due  or  attributable  entirely  to  the  negligence  of  the 
employer,  and  at  most  twenty-five  per  cent  are  attributable  solely  to  the 
negligence  of  the  employee. 

i\'ow  the  common  law  does  not  presume  to  furnish  a  plan  of  relief 
except  where  it  can  be  proven  that  the  defendant  is  at  fault.  Therefore, 
the  common  law  does  not  presume  to  furnish  any  relief  for  something 
like  from  sixty  to  eighty  per  cent  of  all  persons  injured  in  the  United 
States,  and  the  best  estimate  of  the  number  of  persons  injured  and 
killed  in  industrial  accidents  in  1909  is  536,000  people.  What  does  this 
mean  ?    Let  us  see. 

In  the  battle  of.  Gettysburg,  which  lasted  three  days  in,  actual  fighting, 
there  were  killed,  wounded  and  missing  43,500  soldiers.  If  therefore,  you 
were  to  have  a  battle  of  Gettysburg  in  one  of  each  of  twelve  divisions  of 
the  United  States,  one  in  one  month,  say  in  the  neighborhood  of  Boston, 
one  the  next  month  near  New  York  City,  one  the  third  month  in  the 
vicinity  of  Cincinnati,  and  then  successively  at  Atlanta,  New  Orleans, 
St.  Louis,  Minneapolis,  Pittsburg,  Denver,  Portland  and  San  Francisco 
you  would  not  create  quite  the  damage  and  destruction  which  takes 
place  yearly  in  the  industrial  activity  of  the  United  States,  and  for  all 
of  that  destruction,  the  common  law  does  not  pretend  to  furnish  any 
remedy  or  relief,  except  in  those  cases  in  which  the  employer  is  negli- 
gent; and  the  best  figures  indicate  that  these  do  not  exceed  twenty  per 
cent  of  all  injuries.  Even  the  part  -of  that  relief  which  reaches  the  em- 
ployee  is   about   one-fifth   of   what   the   employer   pays   out    to    protect 


workmen's  compensation,  etc.  25 

himself  against  the  liability  arising  out  of  injuries  to  workingmen  in 
industrial  accidents. 

And  so  the  purpose  of  the  Commission  is  to  gather  as  much  in- 
formation as  possible  by  public  hearings  and  otherwise,  by  investigation 
of  the  experience  of  foreign  countries  and  the  work  of  similar  commis- 
sions in  this  country;  to  formulate  some  new  plan  of  compensation  of 
workmen  injured  in  industrial  accidents,  and  perhaps  we  shall  say  with- 
out regard  to  negligence,  unless  it  should  be  for  malicious  negligence  on 
the  part  of  the  employer  or  employee. 

The  compensation  should  be  at  hand  and  should  be  paid  direct  to 
the  employee  without  any  waste  on  account  of  attorney  fees  and  liabil- 
ity insurance  protection. 

At  the  conference  of  the  Employers'  Liability  Commissions  of 
Massachusetts,  Connecticut,  Xew  York,  Xew  Jersey,  Ohio,  Illinois. 
Wisconsin,  Minnesota,  Montana  and  the  Federal  Commission,  held  in 
the  LaSalle  Hotel,  Chicago,  November  loth,  nth  and  12th,  we  agreed 
upon  a  tentative  uniform  Employers'  Compensation  Act  or  plan  of  in- 
surance of  workmen  against  injuries  arising  out  of  industrial  accidents. 
The  record  of  this  conference  will  be  published  by  the  Federal  Gov- 
ernment. 

CONSTITUTIONAL  QUESTIONS  INVOLVED. 

It  is  not  the  proper  time  for  me  as  chairman  of  the  commission 
to  outline  specifically  my  position  on  the  various  legal  questions  involved 
in  the  enactment,  by  our  legislature  of  a  Compensation  Act  or  Plan 
of  Insurance  of  Workmen,  against  injuries  arising  out  of  industrial  ac- 
cidents. 

The  common  law  knows  no  remedy  except  that  based  upon  the  fault 
of  the  defendant.  Can  the  Legislature  displace  actions  based  upon 
the  fault  of  the  employer,  which  compensates  less  than  one  in  eight 
of  the  workmen  injured,  and  those  only  in  one-fifth  part  adequately, 
by  a  compensation  act  or  plan  of  insurance  w^hich  will  compensate  all 
employes  injured,  reasonably,  with  practically  no  waste  and  to  the 
great  betterment  of  the  laboring  forces  of  the  nation  and  the  social  im- 
provement of  the  masses?  With  proper  safeguards  and  limitations.  I 
maintain  that  the  Legislature  can  properly  enact  such  a  law,  on  the 
same  ground  that  you  maintain  the  poor  laws  and  compulsory  education. 
The  life  of  the  people  constantly  changes.  As  in  medicine  there  are 
new  diseases  and  new  remedies  must  be  discovered,  likewise  for  injuries 
arising  in  industrial  accidents  we  must  find  in  the  police  power  of 
the  constitution  of  the  state  the  remedy  to  correct  this  great  social  in- 
justice. The  legislature  has  a  right  to  narrow  and  take  away  common 
law  actions  and  add  new  statutory  causes  of  actions.  The  Norris  Bill  ^ 
itself  illustrates  these  points,  (and  I  cite  numerous  decisions).  By  re- 
stricting and  narrowing  the   three   common   law   defenses,   the   act   en-  / 


26  LEGISLATIVE   REFERENCE  DEPARTMENT,    OHIO    STATE   LIBRARY. 

larges  the  causes  of  action  of  the  plaintiff  and  by  introduction  of  "simple 
implements"  it  denies  persons  injured  by  a  pitchfork,  for  instance,  a 
right  to  sue,  though  the  master  be  negligent. 

The  Legislatures  of  the  states  under  the  due  excercise  of  the  police 
powers  have  the  right  to  enact  a  compensation  act  with  proper  limita- 
tions, without  infringing  on  the  authority  of  the  Federal  Constitution. 
Standards  of  constitutionality  change  with  the  changes  of  the  social  and 
economic  life  of  the  people. 

Below  is  given  a  brief  summary  of  the  decisions  of  the  courts  in 
regard  to  the  constitutional  questions  raised  by  the  substitution  of  a 
compensation  act  or  obligatory  state  insurance  against  industrial  ac- 
cidents without  regard  to  negligence. 

SUMMARY   OF   DECISIONS. 

1.  A  statute  is  not  necessarily  unconstitutional  because  it  places 
an  absolute  or  insurer's  liability  upon  persons  engaged  in  certain  occupa- 
tions. Bertholf  v.  O'Reilly,  74  N.  Y.  509;  Marvin  v.  Trout.  199  U.  S. 
212;  Chicago,  Rock  Island  &  Pacific  Railway  Co.  v.  Zernecke,  183  U. 
S.  582;  St.  Louis  &  San  Francisco  Railroad  Co.  v.  Mathews,  165  U.  S. 
I ;  Jones  v.  Brim,  165  U.  S.  180.  And  see  Jones  v.  Great  Southern 
Hotel  Co.,  86  Fed.  370. 

2.  A  statute  is  not  unconstitiUional  because  it  changes  the  common 
law  or  imposes  a  liability  unknown  to  the  common  law.  Bertholf  v. 
O'Reilly,  74  N.  Y.  509;  Munn  v.  Illinois.  94  IJ.  S.  113;  Rhodes  v. 
Sperry,  193  N.  Y.  223 ;  Adair  v.  U.  S.  208  U.  S.  161  ;  Missouri  Pacific 
Railway  Co.  v.  Mackay,  127  U.  S.  205;  Ivy  v.  Western  Union  Tele- 
graph Co..  165  Fed.  391.  And  see  The  Employers'  Liability  Case,  207 
U.  S.  463;  Martin  v.  Pittsburg  &  Lake  Erie  Railroad  Co.,  203  LI.  S.  284; 
St.  Louis  &  San  Francisco  Railroad  Co.  v.  Mathews,  165  U.  S.  i  ;  John- 
stone V.  Fargo,  184  N.  Y.  379.  A.  T.  &  C.  Ry.  Co.  v.  Mathews.  174 
U.  S.  96,  99,   104;  Brewster  on  Conveyancing.  .Sec.  436. 

3.  A  statute  is  not  necessarily  unconstitutional  because  it  restrains 
the  liberty  of  contract.  McLean  v.  .State  of  Arkansas,  211  LL  S.  539; 
Wilmington  v.  Fulton.  205  U.  S.  60;  Knoxville  Iron  Co.  v.  Harrison. 

(i)  Yon  lehring  Der  Geist  des  Roemischen  Rechts  Vol.  I.  183 
U.  S.  13;  Holden  v.  Hardy,  169  U.  S.  366;  Vroom  v.  N.  Y.  C.  &  PI.  R. 
R.  R.  Co.,  129  App.  Div.  858.  But  see  The  Employers'  Liability  Case, 
207  U.  S.  463  (dissenting  opinion  of  Aloody,  J.)  ;  Adair  v.  United 
States,  208  U.  S.  161;  Lochner  v.  New  York,  198  U.  S.  45;  Al- 
legeyer  v.  Louisiana,  165  U.  S.  578;  Goldfield  Consolidated  Mines  Co. 
V.  Goldfield,  159  Fed.  560;  Muller  v.  Oregon,  208  U.  S.  412  and  Holden 
V.  Hardy,  169  U.  S.  366;  2  Pollock  and  Maitland's  History  of  English 
Law,  Ind.  Ed.,  p.  232 ;  Ritchie  v.  Wayman  et  al.,  244  111.  509  and  2 
Bryce  Amr.  Cons.,  p.  410. 


workmen's  compensation,  etc.  27 

4.  A  provision  in  a  statute  imposing  liabilities  upon  employers 
unci  making  void  all  contracts  between  employers  and  employees  by 
which  the  latter  would  be  deprived  of  the  benefit  of  the  statute,  does 
not  seem  to  be  unconstitutional.  Employers'  Liability  Case,  207  U.  S. 
463;  \'r()om  v.  X.  Y.  C.  &  H.  R.  R.  R.  Co.,  129  App.  Div.  858;  Min- 
nesota Iron  Co.  v.  Kline,  199  U.  S.   593. 

5.  A  statute  is  not  unconstitutional  merely  because  it  applies  to 
large  employers  and  not  to  small  employers.  ^McLean  v.  Arkansas,  211 
U.  S.  539 ;  St.  Louis  Consolidated  Coal  Co.  v.  Illinois,  185  U.  S.  203. 

6.  The  courts  seem  to  have  shown  some  slight  tendency  to  recog- 
nize the  inequality  of  employes  with  their  employers  in  regard  to  con- 
tracts. Knoxville  Iron  Co.  v.  Harrison,  183  L^  S.  13;  Johnston  v. 
Fargo,  184  N.  Y.  379.  But  see  Adair  v.  United  States,  208  U.  S.  161  ; 
People  V.  Williams,  189  X.  Y.  131  ;  Tiedeman  on  State  and  Federal 
Control  of  Persons  anl  Property,  pp.  315-326.  Casper  v.  Lewin,  109 
So.  Rep.  667.     Dayton  Iron  Co.  v.  Barton,  183  U.  S.  p.  22,. 

7.  Statutes  restricting  the  number  of  hours  of  labor  are  not  un- 
consiitutional  if  tliey  are  a  proper  exercise  of  the  police  power,  as  in 
the  case  of,  (a)  ]^Iines — Holden  v.  Hardy,  169  U.  S.  366.  (b)  Laun- 
dries— Soon  Hing  v.  Crowley,  113  L^.  S.  70.  (c)  Railways — ^People 
V.  Phyfe,  136  X.  Y.  554.  (d)  P>akeries — (contra)  Lochner  v.  X'^ew 
York,  189  U.  S.  45. 

8.  Statutes  are  not  unconstitutional  because  they  require  persons 
engaged  in  certain  occupations  to  take  out  licenses,  if  they  are  a  proper 
exercise  of  the  police  power.  People,  etc.  v.  Warden,  et.,  144  N.  Y.  529; 
Gundling  v.  Chicago,  177  L'.  S.  183;  Grainger  v.  Douglas  Park  Jockey 
Club,  148  Fed.  513.     But  see  Bossette  v.  people  62  X[.  E.  215. 

9.  A 'contract  by  which  an  employee  exempts  his  employer  from 
legal  liability  for  injuries  sustained  is  void  as  against  public  policy. 
Johnston  v.  Fargo,  184  X"^.  Y.  2)79- 

Finally  to  quote  from  Professor  Freund  in  his  work  on  the  Police 
Power : 

"The  principle  that  inevitable  loss  should  be  borne,  not  by  the  per- 
son on  whom  it  may  happen  to  fall,  but  by  the  person  who  profits  by 
the  dangerous  business  to  which  the  loss  is  incident,  embodies  a  very 
intelligible  idea  of  justice.  The  system  being  responsible  for  the  loss, 
why  should  it  not  be  constitutional  to  distribute  the  loss  among  the 
beneficiaries  of  the  system?  In  a  large  sense  the  community  is  cer- 
tainly interested  in  averting  sudden  and  unexpected  losses  as  well  as 
the  destitution  following  from  sickness  and  disease,  and  the  distribu- 
tion of  these  losses  over  a  large  number  through  insurance  is  a  legiti- 
mate end  of  governmental  policy.  There  is  no  warrant  for  denying  the 
State  the  power  to  adopt  compulsory  measures  for  the  purpose." 

Freund  on  Police  Power,  Sec.  435.  437. 


28  LEGISLATIVE   REFERENCE  DEPARTMENT,    OHIO   STATE   LIBRARY. 

CONCLUSION. 

The  entire  problem  which  has  been  presented  to  the  Employers' 
Liability  Commission  of  Ohio,  to  devise  a  compensation  act  or  a  plan 
of  insuring  employes  against  loss  of  wages  arising  out  of  industrial  ac- 
cidents, which  we  are  discussing  today,  may  be  formulated  in  a  single 
paragraph  by  quoting  from  the  message  of  Emperor  William  I  to  the 
Reichstag  on  November  17,  1881,  as  he  spoke  by  the  hand  of  Prince 
Bismarck : 

"We  regard  it  as  our  imperial  duty  once  more  to  lay  upon  the  heart 
of  the  Reichstag  the  promotion  of  the  welfare  of  the  workmen,  and  we 
would  look  back  with  all  the  more  satisfaction  on  all  of  the  successes 
with  which  God  has  visibly  blessed  our  reign,  if  we  might  carry  with 
us  the  consciousness  that  we  could  leave  behind  us  new  and  permanent 
assurance  of  inward  peace  and  to  those  who  need  help  greater  security 
and  comfort  to  which  they  have  a  claim.  In  our  efforts  directed  to 
that  end  we  are  sure  of  the  co-operation  of  all  of  the  federated  states 
and  we  look  for  the  support  of  the  Reichstag  without  regard  to  parties. 
First  of  all  to  this  end  a  sketch  of  a  law  relating  to  the  insurance  of 
workmen  against  loss  by  accidents  in  industry  has  been  prepared.  By 
its  side  and  supplementing  it  will  be  offered  a  method  of  organizing 
sickness  insurance  funds.  Likewise  those  who  by  reason  of  age  or  dis- 
ability have  become  unable  to  earn  a  living  have  a  well  founded  claim 
upon  the  community  for  a  larger  measure  of  state  care  than  has  hither- 
to been  given  them.  To  find  the  right  way  and  means  for  this  care  is  a 
difficult  task,  but  it  is  one  of  the  highest  duties  of  every  state,  which 
rests  upon  the  Christian  life  of  the  people.  The  close  union  of  the  real 
forces  of  this  people's  life  with  incorporated  societies  under  state  pro- 
tection and  state  help,  will,  as  we  hope,  make  possible  the  solution  of 
problems  for  which  the  power  of  the  government  alone  would  not  in  the 
same  degree  be  adequate. "^ 

On  February  19,  1907,  Emperor  William  II,  in  his  throne  speech 
before  the  newly  elected  Reichstag  confirmed  the  policy  of  his  grand- 
father, saying: 

"That  legislation  rests  upon  the  principle  of  social  duty  to  the 
working  classes  and  is  therefore  independent  of  parties.  The  federated 
states  are  firmly  decided  to  carry  out  this  social  work  in  the  exalted 
spirit  of  Emperor  William  the  Great. -^ 

Jas.  Harrington  Boyd,  Aftorney-at-Lazv,  Toledo,  Ohio. 


'  W.   F.  Willoughby's  Workingmens'  Insurance    (1898). 
^°  C.  R.  Henderson's  Hist,  of  Industrial  Ins.,  p.  6. 


APPENDIX  I. 

COMPENSATION  ACTS  IN  THE  UNITED  STATES. 

We  have  in  the  United  States  two  examples  of  compensation  acts. 
One  of  these  was  adopted  by  the  state  of  New  York;  the  other  by  Mon- 
tana. The  former  was  recommended  by  the  Employers'  Liability  Com- 
mission of  New  York.  This  act  has  been  tested  and  held  to  be  consti- 
tutional. On  the  following  pages  we  present  the  full  text  of  the  laws 
of  the  two  states  on  this  subject,  together  with  the  decision  on  the  New 
York  law. 


THE  EMPLOYERS'  LIABILITY  LAW  OF  NEW  YORK  STATE. 

Article  14  of  the  Labor  Law    (Chapter  31  of  the  Consolidated  Laws)  ;    Formerly 

Chapter  600  of  the  Laws  of  1902. 

ARTICLE   14. 

Employers'  Liability. 

Section  200.     Emploj'ers'  liability  for  injuries. 

201.  Notice  to  be  served. 

202.  Assumption    of    risks;     contributory    negligence,     when    a 

question  of  fact. 

203.  Defense ;    insurance  fund. 

204.  Existing  rights  of  action  continued. 

Section  200.  Employers'  liability  for  injuries.  When  personal  in- 
jury is  caused  to  an  employee  who  is  himself  in  the  exercise  of  due  care 
and  diligence  at  the  time ; 

1.  By  reason  of  any  defect  in  the  condition  of  the  ways,  works  or 
machinery  connected  with  or  used  in  the  business  of  the  employer  which 
arose  from  or  had  not  been  discovered  or  remedied  owing  to  the  negli- 
gence of  the  employer  or  of  any  person  in  the  service  of  the  employer 
and  intrusted  by  him  with  the  duty  of  seeing  that  the  ways,  works  or 
machinery  were  in  proper  condition; 

2.  By  reason  of  the  negligence  of  any  person  in  the  service  of  the 
employer  intrusted  with  and  exercising  superintendence  whose  sole  or 
principal  duty  is  that  of  superintendence,  or  in  the  absence  of  such  su- 
perintendent, or  any  person  acting  as  superintendent  with  the  authority 
or  consent  of  such  employer ; 

The  employee,  or  in  case  the  injury  results  in  death,  the  executor 
or  administrator  of  a  deceased  employee  who  has  left  him  surviving 
a  husband,  wife  or  next  of  kin,  shall  have  the  same  right  of  compensa- 

(29) 


30  LEGISLATIVE   REFERENCE  DEPARTMENT,   OHIO   STATE   LIBRARY. 

tion  and  remedies  against  the  employer  as  if  the  employee  had  not  been 
an  employee  of  nor  in  the  service  of  the  employer  nor  engaged  in  his 
work.  The  provisions  of  law  relating  to  actions  for  causing  death  by 
negligence,  so  far  as  the  same  are  consistent  with  this  article,  shall  ap- 
ply to  an  action  brought  by  an  executor  or  administrator  of  a  deceased 
employee  suing  under  the  provisions  of  this  article. 

201.  Notice  to  be  served.  No  action  for  recovery  of  compensation 
for  injury  or  death  under  this  article  shall  b'e  maintained  unless  notice 
of  the  time,  place  and  cause  of  the  injury  is  given  to  the  employer  with- 
in one  hundred  and  twenty  days  and  the  action  is  commenced  within 
one  year  after  -the  occurrence  of  the  accident  causing  the  injury  or 
death.  The  notice  required  by  this  section  shall  be  in  writing  and  signed 
by  the  person  injured  or  by  some  one  in  his  Ijehalf,  but  if  from  physical 
or  mental  incapacity  it  is  impossible  for  the  person  injiuxd  to  give  no- 
tice within  the  time  provided  in  this  section,  he  may  give  the  same  within 
ten  days  after  such  incapacity  is  removed.  In  case  of  his  death  without 
having  given  such  notice,  his  executor  or  administrator  may  give  sucli 
notice  within  sixty  days  after  his  appointment,  b'ut  no  notice  under  the 
provisions  of  this  section  shall  be  deemed  to  b'e  invali  1  or  insufficient 
solely  by  reason  of  any  inaccuracy  in  stating  the  time,  place  or 
cause  of  the  injury  if  it  be  shown  that  there  was  no  intention  to  mis- 
lead and  that  the  party  entitled  to  notice  was  not  in  fact  misled  there- 
by. The  notice  required  by  this  section  shall  be  served  on  the  employer, 
or  if  there  is  more  than  one  employer,  upon  one  of  such  employers,  and 
may  be  served  by  delivering  the  same  to  or  at  the  residence  or  place  of 
business  of  the  person  on  whom  it  is  to  be  served.  The  notice  may  be 
served  by  post  by  letter  addressed  to  the  person  on  whom  it  is  to  be  served, 
at  his  last  known  place  of  residence  or  place  of  business,  and  if  served 
by  post  shall  be  deemed  to  have  been  served  at  the  time  when  the  letter 
containing  the  same  would  be  delivered  in  the  ordinary  course  of  the 
post.  When  the  employer  is  a  corporation,  notice  shall  be  served  by 
delivering  the  same  or  by  sending  it  by  post  addressed  to  the  office  or 
principal  place  of  business  of  such  corporation. 

202.  Assumption  of  risk ;  contributory  negligence,  tvhen  a  question 
of  fact.  An  employee  by  entering  upon  or  continuing  in  the  service  of 
the  employer  shall  be  presumed  to  have  assented  to  the  necessary  risks 
of  the  occupation  or  employment  and  no  others.  The  necessary  risks 
of  the  occupation  or  employment  shall,  in  all  cases  arising  after  this 
article  takes  effect,  be  considered  as  including  those  risks,  and  those 
only,  inherent  in  the  nature  of  the  business  which  remain  after  the  em- 
ployer has  exercised  due  care  in  providing  for  the  safety  of  his  em- 
ployees, and  has  complied  with  the  laws  affecting  or  regulating  such 
business  or  occupation  for  the  greater  safety  of  such  employees.  In 
action  maintained  for  the  recovery  of  damages  for  personal  injuries  to 
an  employee  received  after  this  article  takes  eff'ect.  owing  to  any  cause 


workmen's  compensation,  etc.  31 

for  which  the  employer  would  otlierwise  be  liable,  the  fact  that  the  em- 
ployee continued  in  the  service  of  the  employer  in  the  same  place  and 
course  of  employment  after  the  discovery  by  such  employee,  or  after  he 
had  been  informed  of  the  danger  of  personal  injury  therefrom,  shall  not 
as  a  matter  of  law,  be  considered  as  an  assent  by  such  employee  to  the 
existence  or  continuance  of  such  risks  of  personal  injury  therefrom,  or 
as  negligence  contributing  to  such  injury.  The  question  whether  the 
employee  understood  and  assumed  the  risk  of  such  injury,  or  was  guilty 
of  contributory  negligence,  but  his  continuance  in  the  same  place  and 
course  of  employment  with  knowledge  of  the  risk  of  injury,  shall  be 
one  of  fact,  subject  to  the  usual  power  of  the  court  in  a  proper  case  to 
set  aside  a  verdict  rendered  contrary  to  the  evidence.  An  employee,  or 
his  legal  representative,  shall  not  be  entitled  under  this  article  to  any 
right  of  compensation  or  remedy  against  the  employer  in  any  case 
where  such  employee  knew  of  the  defect  or  negligence  which  caused  the 
injury  and  failed,  within  a  reasonable  time,  to  give,  or  cause  to  be 
given,  information  thereof  to  the  employer,  or  to  some  person  superior 
to  himself  in  the  service  of  the  employer  who  had  intrusted  to  him 
some  general  superintendence,  unless  it  shall  appear  on  the  trial  that 
such  defect  or  negligence  was  known  to  such  employer,  or  superior 
person,  prior  to  such  injuries  to  the  employee. 

203.  Defense ;  insurance  fund.  An  employer  who  shall  have  con- 
tributed to  an  insurance  fund  created  and  maintained  for  the  mutual 
purpose  of  indemnifying  an  employee  for  personal  injuries,  for  which 
compensation  ma}-  b'e  recovered  under  this  article,  or  to  any  relief  so- 
ciety or  benefit  fund  created  under  the  laws  of  this  State,  may  prove 
in  mitigation  of  damages  recoverable  by  an  employee  under  this  article 
such  proportion  of  the  pecuniary  benefit  which  has  been  received  by 
such  employee  from  such  fund  or  society  on  account  of  such  contribu- 
tion of  the  employer,  as  the  contribution  of  such  employer  to  such  fund 
or  society  bears  to  the  whole  contribution  thereto. 

204.  Existing  rights  of  action  continued.  Every  existing  right 
of  action  for  negligence  or  to  recover  damages  for  injuries  resulting  in 
death  is  continued  and  nothing  contained  in  this  article  shall  b'e  con- 
strued as  limiting  any  such  right  of  action,  nor  shall  the  failure  to- 
give  the  notice  provided  for  in  section  two  hundred  and  one  of  this  ar- 
ticle be  a  bar  to  the  maintenance  of  a  suit  upon  any  such  existing  right 
of  action. 


32  LEGISLATIVE    REFERENCE  DEPARTMENT,    OHIO    STATE    LIBR.\RY. 


THE   RAILWAY    LIABILITY    LAW    OF    XEW   YORK   STATE. 

Section  42-A  of  the  Railroad  Law   (Chapter  39  of  the  General   Laws)    Added   by 

Chapter  657  of  the  Laws  of  1906. 

42-A.  In  all  actions  against  a  railroad  corporation,  foreign  or 
domestic,  doing  business  in  this  State,  or  against  a  receiver  thereof,  for 
personal  injury  to,  or  death  resulting  from  personal  injury  of  any  per- 
son, while  in  the  employment  of  such  corporation,  or  receiver,  arising 
from  the  negligence  of  such  corporation  or  receiver  or  any  of  its  or  his 
officers  or  employees,  every  employee,  or  his  legal  representatives,  shall 
have  the  same  rights  and  remedies  for  an  injury,  or  for  death,  suffered 
by  him.  from  the  act  or  omission  of  such  corporation  or  receiver  or 
of  its  or  his  officers  or  employees,  as  are  now  allowed  by  law.  and,  m 
addition  to  the  liability  now  existing  by  law.  it  shall  b'e  held  in  such  ac- 
tions that  persons  engaged  in  the  service  of  any  railroad  corporation, 
foreign  or  domestic,  doing  business  in  the  State,  or  in  the  service  of  a 
receiver  thereof,  who  are  entrusted  by  such  corporation  or  receiver, 
with  the  authority  of  superintendence,  control  or  command  of  other 
persons  in  the  employment  or  such  corporation  or  receiver,  or  with  au- 
thority to  direct  or  control  any  other  employee  in  the  performance 
of  the  duty  of  such  employee,  or  who  have,  as  a  part  of  their  duty,  for 
the  time  being,  physical  control  or  direction  of  the  movement  of  a 
signal,  switch,  locomotive  engine,  car,  train  or  telegraph  office,  are  vice- 
principals  of  such  corporation  or  receiver,  and  are  not  fellow-serv^ants 
of  such  injured  or  deceased  employee.  If  an  employee,  engaged  in  the 
service  of  any  such  railroad  corporation,  or  of  a  receiver  thereof,  shall 
receive  any  injury  by  reason  of  any  defect  in  the  condition  of  the  ways, 
works,  machinery,  plant,  tools  or  implements,  or  of  any  car.  train,  loco- 
motive or  attachment  thereto  belonging,  owned  or  operated,  or  being  run 
and  operated  by  such  corporation  or  receiver,  by  reasonable  and  proper 
care,  tests  or  inspection,  such  corporation  or  receiver  shall  be  deemed 
to  have  had  knowledge  of  such  defect  before  and  at  the  time  such  in- 
jury is  sustained;  and  when  the  fact  of  such  defect  shall  be  proved  upon 
the  trial  of  any  action  in  the  courts  of  this  State,  brought  by  such  em- 
ployee or  his  legal  representative,  against  any  such  railroad  corporation 
or  receiver,  on  account  of  such  injuries  so  received,  the  same  shall  be 
prima  facie  evidence  of  negligence  on  the  part  of  such  corporation  or 
receiver.  This  action  shall  not  effect  actions  or  causes  of  action  now 
existing;  and  no  contract,  receipt,  rule,  or  regulation  between  an  em- 
ployee and  a  railroad  corporation  or  receiver  shall  exempt  or  limit  the 
liability  of  such  corporation  or  receiver  from  the  provisions  of  this  sec- 
tion. 


workmen's  compensation,  etc.  33 

STATE  OF  NEW  YORK. 

(Compensation  Act.) 

Chap.  674. 

AN  ACT  to  amend  the  labor  law ,   in  relation  to  workmen's  compensation  in  cer- 
tain dangerous   employments. 

Became  a  law  June  25,   1910,   with  the  approval  of  the  Governor.     Passed,  three- 
fifths  being  present. 

The  People  of  the  State  of  New  York,  represented  in  Senate  and 
Assembly,  do  enact  as  follozvs : 

Section  i.  Chapter  thirty-six  of  the  laws  of  nineteen  hundred  and 
nine,  entitled  "An  act  relating  to  labor,  constituting  chapter  thirty-one 
of  the  consolidated  laws,"  is  hereby  amended  by  inserting  therein  a  new 
article,  to  be  article  fourteen-a  thereof,  to  read  as  follows : 

Article  14-A. 

workmen's   compensation    IX    CERTAIN    DANGEROUS   EMPLOYMENTS. 

Section  215.    Application  of  article. 

216.  Definitions. 

217.  Basis  of  liability. 

218.  Rights  of  action  not  affected. 

219.  Notice  of  accident. 
219-a.     Scale   of   compensation. 
219-b.     Medical  examinations. 
219-c.     Incompetency  of  workman. 
219-d.     Settlement  of  disputes. 
219-e.     Preferences  and  exemptions. 
219-f.     Attorneys'  liens. 

219-g.     Liability  of  principal  contractors. 

Section  215.  Application  of  article.  This  article  shall  apply  only 
to  workmen  engaged  in  manual  or  mechanical  labor  in  the  following 
employments,  each  of  which  is  hereby  determined  to  be  especially  dan- 
gerous, in  which  from  the  nature,  conditions  or  means  of  prosecution 
of  the  work  therein,  extraordinary  risks  to  the  life  and  limb  of  work- 
men engaged  therein  are  inherent,  necessary  or  substantially  unavoid- 
able, and  as  to  each  of  which  employments  it  is  deemed  necessary  to 
establish  a  new  system  of  compensation  for  accidents  to  workmen. 

1.  The  erection  or  demolition  of  any  bridge  or  building  in  which 
there  is.  or  in  which  the  plans  and  specifications  require,  iron  or  steel 
frame  work. 

2.  The  operation  of  elevators,  elevating  machines  or  derricks  or 
hoisting  apparatus  used  within  or  on  the  outside  of  any  bridge  or  build- 
ing for  the  conveying  of  materials  in  connection  with  the  erection  or 
demolition  of  such  bridge  or  building. 

3     w.  c. 


34  LEGISLATIVE   REFERENCE  DEPARTMENT,   OHIO   STATE   LIBRARY, 

3.  Work  on  scaffolds  of  any  kind  elevated  twenty  feet  or  more 
above  the  ground,  water,  or  floor  beneath  in  the  erection,  construction, 
painting,  alteration  or  repair  of  buildings,  bridges  or  structures. 

4.  Construction,  operation,  alteration  or  repair  of  wires,  cables^ 
switchboards  or  apparatus  charged  with  electric  currents. 

5.  All  work  necessitating  dangerous  proximity  to  gunpowder, 
blasting  powder,  dynamite  or  any  other  explosives,  where  the  same  are 
used  as  instrumentalities  of  the  industry. 

6.  The  operation  on  steam  railroads  of  locomotives,  engines, 
trains,  motors  or  cars  propelled  by  gravity  or  steam,  electricity  or  other 
mechanical  power,  or  the  construction  or  repair  of  steam  railroad  tracks 
and  road  beds  over  which  such  locomotives,  engines,  trains,  motors  or 
cars  are  operated. 

7.  The  construction  of  tunnels  and  subways. 

8.  All  work  carried  on  under  compressed  air. 

Section  216.  Definitions.  The  words,  "employer,"  "workman," 
and  "employment,"  or  their  plurals,  used  in  this  article,  shall  be  con- 
strued to  apply  to  all  the  employments  above  described. 

Section  217.  Basis  of  liability.  If,  in  the  course  of  any  of  the 
employments  above  described,  personal  injury  by  accident  arising  out 
of  and  in  the  course  of  the  employment  after  this  article  takes  effect 
is  caused  to  any  workman  employed  therein,  in  whole  or  in  part,  or  the 
damage  or  injury  caused  thereby  is  in  whole  or  part  contributed  to  by 

a.  A  necessary  risk  or  danger  of  the  employment  or  one  inherent 
in  the  nature  thereof ;  or  '  ■ 

b.  Failure  of  the  employer  of  such  workman  or  any  of  his  or  its 
officers,  agents  or  employees  to  exercise  due  care,  or  to  comply  with  any 
law  affecting  such  employment ;  then  such  employer  shall,  subject  as 
hereinafter  mentioned,  be  liable  to  pay  compensation  at  the  rates  set 
out  in  section  two  hundred  and  nineteen-a  of  this  title ;  provided  that 
the  employer  shall  not  be  liable  in  respect  of  any  injury  which  does  not 
disable  the  workman  for  a  period  of  at  least  two  weeks  from  earning 
full  wages  at  the  work  at  which  he  was  employed,  and  provided  that  the 
employer  shall  not  be  liable  in  respect  of  any  injury  to  the  workman 
which  is  caused  in  whole  or  in  part  by  the  serious  an  1  willful  miscon- 
duct of  the  workman. 

Section  218.  Rights  of  action  not  affected.  The  right  of  action 
for  damages  caused  by  any  such  injury,  at  common  law  or  under  any 
statute  in  force  on  January  one,  nineteen  hundred  and  ten,  shall  not  be 
aft'ected  by  this  article,  and  every  existing  right  of  action  for  negligence 
or  to  recover  damages  for  injuries  resulting  in  death  is  continued,  and 
nothing  in  this  article  shall  be  construed  as  limiting  such  right  of  action, 
but  in  case  the  injured  workman,  or  in  event  of  his  death  his  executor  or 
administrator,  shall  avail  himself  of  this  article,  either  by  accepting  any 
compensation   hereunder   in   accordance   with   section   two   hundred   and 


workmen's  compensation,  etc.  85 

nineteen-a  hereof  or  by  beginning  proceedings  therefor  in  any  manner 
on  account  of  any  such  injury,  he  shall  be  barred  from  recovery  in  and 
deemed  thereby  to  have  released  every  other  action  at  common  law  or 
under  any  other  statute  on  account  of  the  same  injury  after  this  article 
takes  efifect.  In  case  after  such  injury  the  workman,  or  in  the  event 
of  his  death  his  executor  or  administrator,  shall  commence  any  action 
at  common  law  or  under  any  statute  other  than  this  article  against  the 
employer  therefor  he  shall  be  barred  from  all  l;enefit  of  this  article  in 
regard  thereto. 

Section  219.  Notice  of  accident.  No  proceedings  for  compensa- 
tion under  this  article  shall  be  maintained  miless  notice  of  the  acci- 
dent as  hereinafter  provided  has  been  given  to  the  employer  as  soon 
as  practicable  after  the  happening  thereof  and  before  the  workman  has 
voluntarily  left  the  employment  in  which  he  was  injured,  and  during 
such  disability,  but  no  want  or  defect  or  inaccuracy  of  a  notice  shall  be 
a  bar  to  the  maintenance  of  proceedings  unless  the  employer  proves  that 
he  is  prejudiced  by  such  want,  defect  or  inaccuracy.  Notice  of  the  ac- 
cident shall  state  the  name  and  address  of  the  workman  injured,  the  date 
and  place  of  the  accident,  and  in  simple  language  the  physical  cause 
thereof,  if  known.  The  notice  may  be  served  personally  or  by  sending 
difference  between  the  amount  of  the  average  weekly  earnings  of  the 
workman  before  the  accident  and  the  average  weekly  amount  which 
he  is  earning  or  is  able  to  earn  in  the  same  employment  or  otherwise 
after  the  accident,  but  shall  amount  to  one-half  of  such  difference.  In 
no  event  shall  any  compensation  paid  under  this  article  exceed  the  dam- 
age suffered,  nor  shall  any  weekly  payment  payable  under  this  article  in- 
any  event  exceed  ten  dollars  a  week  or  extend  over  more  than  eight 
years  from  the  date  of  the  accident. 

Section  219-b.  Medical  examinations.  Any  workman  entitled  to  re- 
ceive weekly  payments  under  this  article  is  required,  if  requested  by 
the  employer,  to  submit  himself  for  examination  by  a  duly  qualified 
medical  practitioner  or  surgeon  provided  and  paid  for  by  the  employer, 
at  a  time  and  place  reasonably  convenient  for  the  workman,  within 
three  weeks  after  the  injury,  and  thereafter  at  intervals  not  oftener  than 
once  in  six  weeks.  If  the  workman  refuses  to  submit  to  such  exami- 
nation, or  obstructs  the  same,  his  right  to  weekly  payments  shall  be 
suspended  until  such  examination  has  taken  place,  and  no  compensation 
shall  be  payable  during  or  for  account  of  such  period. 

Section  219-c.  Incompetency  of  zvorkman.  In  case  an  injiu-ed 
workman  shall  be  mentally  incompetent  at  the  time  when  any  right  or 
privilege  accrues  to  him  under  this  article,  a  committee  or  guardian  of 
the  incompetent  appointed  pursuant  to  the  law  may,  on  behalf  of  such 
incompetent,  claim  and  exercise  any  such  right  or  privilege  with  the 
same  force  and  eft'ect  as  if  the  workman  himself  had  been  competent 
an!    had    claimed    or    exercised    any    such    right    or   privilege;    and    na 


36  LEGISLATIVE    REFERENCE  DEPARTMENT,    OHIO    STATE   LIBRARY. 

limitation  of  time  in  this  article  'provided  for  shall  run  so  long  as  said 
incompetent  workman  has  no  committee  or  guardian. 

Section  219-d.  Settlement  of  disputes.  Any  question  which  may 
arise  under  this  act  shall  be  determined  either  by  agreement  or  by 
arbitration  as  provided  in  the  code  of  civil  procedure  or  by  an  action  at 
law  as  herein  provided.  In  case  the  employer  fail  to  make  compensa- 
tion as  herein  provided,  the  injured  workman,  or  his  committee  or 
guardian,  if  such  be  appointed,  or  his  ex-ecutor  or  administrator,  may 
then  bring  an  action  to  recover  compensation  under  this  article  hi  any 
court  having  jurisdiction  thereof,  or  in  any  court  which  would  have 
had  jurisdiction  of  an  action  for  recovery  of  damages  for  negligence  for 
the  same  injury  between  the  same  parties.  This  article  however  shall 
not  be  construed  as  extending  the  jurisdiction  of  any  such  court  to 
award  judgment  for  an  amount  greater  than  now  allowed  by  law.  Such 
action  shall  be  conducted  in  the  same  manner  as  actions  at  law  for  the 
recovery  of  damages  for  negligence.  The  judgment  in  such  action  if  in 
favor  of  the  plaintiff  shall  be  for  a  sum  equal  to  the  amount  of  pay- 
ments then  due  and  prospectively  due  under  this  article.  Such  action 
must  be  commenced  within  six  months  after  the  happening  of  the  ac- 
cident or  in  case  of  the  death  of  the  workman  by  such  accident  within 
six  months  after  the  appointment  of  his  legal  representative  in  this  state, 
or  in  the  event  of  his  physical  incapacity,  within  six  months  after  the 
removal  thereof,  or  in  the  event  of  weekly  payments  by  the  employer 
liereunder,  within  six  months  after  such  payments  have  ceased.  In 
such  action  by  an  executor  or  administrator  the  judgment  may  pro- 
vide the  proportions  of  the  award  or  the  costs  to  be  distributed  to  or 
b'etween  the  several  dependents.  If  such  determination  is  not  made  it 
shall  be  determined  by  the  surrogate's  court,  in  which  such  executor  or 
administrator  is  appointed,  in  accordance  with  this  article,  on  petition 
of  any  party  interested  on  such  notice  as  such  court  may  direct. 

Section  219-e.  Preferences  and  exemptions.  Any  person  en- 
titled to  weekly  payments  under  this  article  against  any  employer  shall 
liave  the  same  preferential  claim  therefor  against  the  assets  of  the  em- 
ployer as  allowed  by  law  for  a  claim  by  such  person  against  such  em- 
ployer for  unpaid  wages  or  personal  services'.  Weekly  payments  due 
tmder  this  article  shall  not  be  assignable  or  subject  to  levy,  execution 
■or  attachment. 

Section  219-f.  Attorneys'  Hens.  No  claim  of  an  attorney-at- 
law  for  any  contingent  interest  in  any  recovery  under  this  article  for 
services  in  securing  such  recovery  or  for  disbursements  shall  be  an 
enforceable  lien  on  such  recovery,  unless  the  amount  of  the  same  be 
approved  in  writing  by  a  justice  of  the  supreme  court,  or  in  case  the 
same  be  tried  in  any  court,  by  the  justice  presiding  at  such  trial. 

Section  219-g.  Liability  of  principal  contractors.  If  an  employer 
who  shall  be  the  principal  enters  into  a  contract  with  an  independent 


workmen's  compensation,  etc.  37 

contractor  to  do  part  of  such  employer's  work,  or  if  such  contractor  en- 
ters into  a  contract  with  a  subcontractor  to  do  all  or  any  part  of  the 
work  comprised  in  such  contractor's  contract  with  the  employer,  the 
said  principal  shall  be  liable  to  pay  to  any  workman  employed  in  the 
execution  of  the  work  any  compensation  under  this  article  which  he 
would  have  been  liable  to  pay  if  that  workman  had  been  immediate- 
ly employed  by  him ;  and  where  compensation  is  claimed  from  or  pro- 
ceedings are  taken  against  the  principal  then,  in  the  application  of  this 
article,  references  to  the  principal  shall  be  substituted  for  references  to 
the  employer,  except  that  the  amount  of  compensation  shall  be  calculated 
with  reference  to  the  earnings  of  the  workman  under  the  contractor  or 
■employer  by  whom  he  is  immediately  employed.  Where  such  principal 
is  liable  to  pay  compensation  he  shall  be  entitled  to  be  indemnified  by 
any  person  who  would  have  been  liable  to  pay  compensation  to  the 
workman  independently  of  this  section.  Nothing  in  this  section  shall 
he  construed  as  preventing  a  workman  from  recovering  compensation 
imder  this  article  from  the  contractor  or  subcontractor,  instead  of  the 
principal ;  nor  shall  this  section  apply  in  any  case  where  the  accident 
shall  occur  elsewhere  than  on,  or  in,  or  about  the  premises  on  which  the 
principal  has  undertaken  to  execute  the  work  or  which  are  otherwise 
imder  his  control  or  management. 

Section  2.     This  act  shall  take  effect  September  first,  nineteen  hun- 
dred and  ten. 


(Foregoing  Act  —  Held  Constitutional.) 
SUPREME  COURT— SPECIAL  TERM. 

Erie  County,  September,  1910. 

Earl  Ives,  Plaintiff,  v.  The  South  Buffalo  Railway  Company, 

Defendant. 

DEMURRER  TO  DEFENDANT'S  ANSWER. 
Thomas  C.  Burke,  for  Plaintiff;  Charles  B.  Seats,  for  Defendant. 

Pound,  J.  The  answer  challenges  the  constitutionality  of  chapter 
674,  Laws  1910,  entitled  "An  act  to  amend  the  Labor  Law  in  relation  to 
workmen's  compensation  in  certain  dangerous  employments."  This 
chapter  applies  only  to  workmen  engaged  in  manual  or  mechanical  labor 
in  certain  employments  declared  by  the  act  to  be  dangerous  by  reason  of 
inherent,  necessary  or  substantially  unavoidable  risks  to  life  or  limb,  in 
which  it  is  deemed  necessary  to  establish  a  new  system  of  compensation 
for  accidents  to  workmen  (sec.  215). 

Among  such  employments  is  included : 

6.  "The  operation  on  steam  railroads  or  locomotives,  engines, 
trains,  motors  or  cars  propelled  by  gravity  or  steam,  electricity  or  other 


38  LEGISLATIVE   REFERENCE  DEPARTMENT,   OHIO   STATE   LIBRARY. 

mechanical  power,  or  the  construction  or  repair  of  steam  raih-oad 
tracks  and  roadbeds  over  which  such  locomotives,  engines,  trains,  motors 
or  cars  are  operated"  (sec.  215), 

Plaintiff  brings  himself  squarely  under  the  provisions  of  this  act  by 
alleging  facts  that  established,  as  admitted  by  the  answer,  that,  while 
employed  by  defendant  as  a  switchman,  he  was  injured  in  the  prosecu- 
tion of  his  work,  without  negligence  on  the  part  of  the  defendant,  and 
"without  serious  or  wilful  misconduct"  on  his  part,  but  solely  by  rea- 
son of  a  necessary  risk  or  danger  of  his  employment,  or  one  inherent  in- 
the  nature  thereof  (sec.  217). 

Prior  to  the  enactment  of  the  statute  above  cited  he  would  have 
been  without  remedy.  By  virtue  of  its  provisions  he  is  entitled  to  re- 
cover according  to  a  fixed  scale  of  compensation  without  establishing 
that  the  employer  is  at  fault  in  any  way  (sec.  219  a). 

The  plaintiff  demurs  to  the  answer  on  the  ground  that  it  is  insuf- 
ficient in  law  on  its  face. 

This  act  is  based  on  the  Workmen's  Compensation  Act  of  England, 
and  its  enactment  is  due  to  the  fact  that  the  common  law  affords  no 
available  remedy  for  injuries  occasioned  by  industrial  accidents  not  at- 
tributable to  the  negligence  of  the  employer. 

Defendant  maintains  that,  under  our  system  of  constitutional  gov- 
ernment, the  incorporation  into  our  law  of  the  English  law  of  work- 
men's compensation  is  beyond  the  powers  of  the  Legislature.  First,  be- 
cause the  act  in  question  deprives  the  defendant  of  liberty  and  property 
without  due  process  of  law,  and  denies  it  the  equal  protection  of  the 
laws  in  contravention  of  the  Fourteenth  Amendment  of  the  United 
states  Constitution,  and  article  i,  section  6,  of  the  Constitution  of  this 
State.  Second,  because  it  violates  the  right  of  trial  by  jury  guaranteed 
by  article  i,  section  2  of  the  Constitution  of  this  State.  Third,  because 
it  limits  the  amount  recoverable  in  actions  to  recover  damages  for  in- 
juries resulting  in  death  in  contravention  of  article  i,  section  18,  of  the 
Constitution  of  this  State. 

It  has  well  been  said  by  Justice  Brown  of  the  Supreme  Court 
of  the  United  States,  writing  the  opinion  of  the  Court  in  Holden  v. 
Hardy  (169  U.  S.,  366,  at  p.  587),  that  "wdiile  the  cardinal  principles 
of  justice  are  immutable,  the  methods  by  which  justice  is  administered 
are  subject  to  constant  fluctuation,  and  the  Constitution  of  the  United 
States,  which  is  necessarily  and  to  a  large  extent  inflexible  and  exceed- 
ingly difficult  of  amendment  should  not  be  so  construed  as  to  deprive  the 
States  of  the  power  to  so  amend  their  laws  as  to  make  them  conform  to 
the  wishes  of  the  citizens  as  they  may  deem  best  for  the  public  welfare 
without  bringing  them  into  conflict  with  the  supreme  law  of  the  land." 

It  is  well  established  that  statutes  applicable  solely  to  railroads  do 
not  deny  to  railroads  the  equal  protection  of  the  laws.     A  classification 


workmen's  compensation,  etc.  39 

of  "dangerous  employments"  for  the  purposes  of  the  act  must  be  up- 
held  (Missouri  R'y  v.  Mackay,   127  U.  S.,  205). 

But  the  act  is  attacked  chiefly  because  it  imposes  liability  without 
fault.  Our  jurisprudence  offers  examples  of  legal  liability  zvithout 
fault,  and  the  deprivation  of  property  without  fault  being  attributable 
to  its  owner.  The  law  of  deodand  was  such  an  example.  The  personi- 
fication of  the  ship  in  niarine  law  is  another.  Other  examples  are  of- 
fered in  the  common  law  liability  of  the  husband  for  the  torts  of  the 
wife,  or  liability  of  the  master  for  the  acts  of  his  servant  (The  Osceola, 
189  U.  S.,  158;  Chicago,  :^.  I.  &  P.  R'y  v.  Zernecke,  183  U.  S.  582). 

In  the  case  last  cited  a  statute  making  railroad  companies  liable 
for  all  damages  inflicted  upon  the  person  of  passengers  while  being 
transported  over  its  road,  except  in  cases  where  the  injury  arose  through 
the  criminal  negligence  of  the  person  injured,  was  upheld,  primarily  on 
the  ground  that  the  railroad  company  being  a  domestic  corporation  of 
Nebraska  accepted  with  its  incorporation  the  liability  so  imposed  by  the 
laws  of  the  State  and  could  not  complain  of  it.  But  the  court  in  its 
opinion  cites  with  approval  the  opinion  of  the  Supreme  Court  of  Ne- 
braska. That  court  said :  "The  legislation  is  justifiable  under  the 
police  power  of  the  State,  so  it  has  been  held.  It  was  enacted  to  make 
railroad  companies  insurers  of  the  safe  transportation  of  their  pas- 
sengers as  they  were  of  baggage  and  freight ;  and  no  good  reason  is 
suggested  why  a  railroad  company  should  be  released  from  liability  for 
injuries  received  by  a  passenger  while  being  transported  over  its  line 
while  the  corporation  must  respond  for  any  damages  to  his  baggage  or 
freight." 

The  Legislature  may  alter  or  repeal  the  common  law.  It  may 
create  new  oflrenses,  enlarge  the  scope  of  civil  remedies  and  foster  re- 
sponsibility for  injuries  upon  persons  against  whom  the  common  law 
gives  no  remedy  (Bertholf  v.  O'Reilly,  74  N.  Y.,  504). 

It  would  seem  to  follow  that  it  might  make  those  who  employ  work- 
men in  dangerous  callings  insurers  to  some  extent  of  the  safety  of  such 
workmen.  The  common  law  imposed  upon  the  employee  entire  responsi- 
bilities for  injuries  arising  out  of  the  necessary  risks  or  dangers  of  the 
employment.  The  statute  before  us  merely  shifts  such  liability  upon  the 
employer.  That  the  Legislature  has  the  power  to  deal  with  the  question 
of  employers'  liability  on  a  basis  other  than  faitlt  is  not  clear  beyond 
peradventure,  but  every  presumption  is  in  favor  of  the  constitutional- 
ity of  the  act,  nor  do  I  find  its  constitutionality  so  doubtful  as  to  war- 
rant this  court  in  holding  that  such  action  is  not  within  the  constitu- 
tional powers  of  the  Legislature. 

I  have  examined  the  authorities  cited  by  the  learned  counsel  for 
the  defendant.  They  merely  point  out  the  shifting  character  of  the 
border  line  between  statutes  which  are  upheld  by  the  court  as  being  a 
legitimate  exercise  of  the  legislative  power  to  pass  all  manner  of  neces- 


40  LEGISLATIVE   REFERENCE  DEPARTMENT,   OHIO   STATE   LIBRARY. 

sary  and  wholesome  acts  for  the  protection  and  well-being  of  the  pub- 
lic, although  such  acts  may  interfere  with  personal  liberty  and  the  right 
to  do  what  one  will  with  his  own,  and  statutes  which  are  held  by  the 
courts  to  interfere  without  warrant  with  the  privilege  of  pursuing  an 
ordinary  trade  or  calling,  and  therefore  to  be  unconstitutional  and 
void. 

In  the  case  of  Lockner  v.  New  York  (189  U.  S.  45)  the  prevailing 
and  dissenting  opinions  contain  a  full  discussion. of  the  principles  under- 
lying the  decision  of  such  cases.  The  court  held  in  that  case  that  there 
is  no  reasonable  ground  on  the  score  of  health  for  interfering  with  the 
liberty  of  the  person  or  the  right  of  free  contract  by  determining  hours 
of  labor  in  the  occupation  of  a  baker.  The  same  court  had  already  held 
in  Holden  v.  Hardy  (supra)  that  there  was  reasonable  ground  on  the 
score  of  health  for  interfering  with  the  liberty  of  the  person  and  the 
right  of  free  contract  in  determining  hours  of  labor  in  the  occupation 
of  workingmen  in  smelters.  In  the  former  case  the  public  good  did  not, 
in  the  judgment  of  the  court,  require  the  restrictive  legislation ;  in  the 
latter  case  it  did. 

In  the  latter  case  Justice  Brown  says  that  "This  court  has  not  failed 
to  recognize  the  fact  that  the  law  is  to  some  extent  a  progressive  science. 
Classes  of  persons,  particularly  those  engaged  in  dangerous  or  unhealth- 
ful  employments,  have  been  found  to  be  in  need  of  additional  protec- 
tion." 

As  to  the  objection  to  the  statute  that  it  limits  the  amount  recover- 
able in  death  cases,  it  is  enough  to  say  that  it  is  for  the  plaintiff  to 
make  the  claim  of  unconstitutionality  in  this  regard,  as  it  is  the  plaintiff 
alone  who  is  prejudiced  thereby,  and  it  does  not  lie  in  the  mouth  of  the 
defendant  to  raise  this  objection  to  the  statute. 

Demurrer  overruled,  with  costs,  and  judgment  absolute  for  the 
plaintiff  directed  on  the  pleadings,  with  costs. 


STATE  OF  MONTANA. 
Chapter  4. 

accident  and  total  disal'.ility  insurance  for  coal  miners. 

(Act  of  March  4.   1909.) 

SENATE  BILL'NO.  56. 

An  Act  to  create  a  State  Accident  Insurance,  and  Total  Permanent  Disability 
Fund,  for  coal  miners  and  employees  at  coal  washers  in  the  State  of  Mon- 
tana, and  providing  for  .the  maintenance  and  management  of  the  same;  ex- 
tending and  defining  the  duties  of  the  State  Auditor ;  and  fixing  penalties  for 
the  violation  of  the  provisions  of  this  Act. 

Be  it  enacted  by  the  Legislature  Assembly  of  the  State  of  Montana : 

Section   i.     To   Whom  Act  Applies.     All  workmen,  laborers  and 

employees  employed  in  and  arotmd  any  coal  mines,  or  in  and  arotmd 


workmen's  compensation,  etc.  41 

any  coal  washers  in  which  coal  is  treated,  except  office  employees,  su- 
perintendents and  general  managers,  shall  be  insured  in  accordance  with 
the  provisions  of  this  Act,  against  accidents  occurring  in  the  course  of 
their  occupations. 

Section  2.  Hoiv  Fund  Raised — To  Whom  Paid.  All  corpora- 
tions, partnerships,  associations  or  persons  engaged  in  the  business  of 
operating  any  coal  mine  or  coal  washers  in  the  State  of  Montana  shall 
pay  to  the  Auditor  of  the  State,  within  five  days  after  the  monthly 
wages  at  the  particular  mine  shall  have  been  paid,  one  cent  per  ton  on 
the  tonnage  of  coal  mined  and  shipped,  or  sold  locally,  or  having  been 
mined  is  ready  for  shipment  or  sale  during  the  month  for  which  the 
wages  were  paid ;  and  all  persons  mentioned  in  Section  i  employed  in 
and  about  coal  mines  shall  allow  to  be  deducted  from  their  gross  month- 
ly earnings  one  percent  thereof,  the  deduction  to  be  made  by  the  agent, 
manager,  or  foreman  of  any  corporation,  association,  partnership,  per- 
son or  persons  engaged  in  the  business  of  operating  any  coal  mine  or 
coal  washer,  and  paid  to  the  State  Auditor  wathin  five  days  after  such 
monthly  wages  have  been  paid. 

Section  3.  Agents  to  Report  Tonnage  Mined — Contracts  Waiving 
Effect  of  Act  Void.  The  agent,  manager,  foreman,  or  accountant  of  any 
corporation,  partnership,  association,  person  or  persons,  engaged  in  min- 
ing coal  in  ]\Iohtana,  shall  on  or  before  the  fifth  day  succeeding  the 
pay  day  at  his  respective  mine,  make  report  imder  oath  to  the  State  Au- 
ditor as  to  the  tonnage  mined  and  subject  to  the  payment  of  one  cent 
per  ton  thereon;  and  stating  the  gross  earnings  subject  to  the  one  per 
cent  deduction  as  provided  in  this  Act,  accompanied  by  a  certified  check 
in  full  for  the  amount  of  the  tax  provided  in  Section  2  of  this  Act.  It 
shall  be  unlawful  for  any  person,  employer,  employe,  corporation,, 
partnership,  association  or  union  to  make  any  contract  waiving,  avoiding 
or  affecting  the  full  legal  effect  of  this  Act. 

Section  4.  Receipt  of  Funds  by  Auditor — Duties — Liabilities  of 
Sureties  State  Treasurer — Interest.  It  is  hereby  made  the  duty  of  the 
State  -Auditor  to  receive  all  moneys  as  provided  for  in  this  Act,  and 
to  send  the  proper  acknowledgement  to  the  person  making  such  re- 
mittance. The  Auditor  shall  pay  all  moneys  so  received  by  him  to  the 
State  Treasurer,  who  shall  keep  such  sums  in  safe  custody  in  a  distinct 
fund  to  be  known  as  the  Employers  and  Employes  Co-Operative  Insur- 
ance and  Total  Permanent  Disability  Fund.  The  State  Treasm^er  must 
invest  the  surplus  of  this  fund  in  safe  and  convertible  State,  County 
or  City  bonds  or  bonds  of  the  United  States.  All  interest  accruing  from 
such  investments  shall  be  accredited  to  this  insurance  fund.  The  bond 
of  the  State  Treasurer  shall  be  liable  for  such  funds,  and  it  shall  be  his 
duty  to  keep  accurate  accounts  of  the  receipts  and  disbursements  of 
such  money. 


42  LEGISLATIVE   REFERENCE  DEPARTMENT,   OHIO   STATE   LIBRARY. 

Section  5.  Fayiuciit  of  Dcatli  Claims — To  JJlioiii — Duty  of  Au- 
ditor— Personal  Inquiries — How  Compensation  Paid.  The  Auditor  of 
State  shall  keep  full  statistics  of  the  operation  of  this  function  of  liis 
department  in  the  event  of  death  by  accident  of  an  employe  insured 
under  this  act,  who  shall  have  come  to  his  death  in  the  course  of  his 
■employment  and  by  causes  arising  therein.  The  Auditor  of  State  upon 
being  satisfied  by  adequate  evidence  of  such  death  shall  issue  a  war- 
rent  upon  the  State  Treasurer  to  persons  dependent  upon  the  deceased, 
these  warrants  to  issue  in  the  following  order : 

(i)  To  surviving  wife  and  child,  or  children,  in  equal  shares,  and 
if  neither  wife  or  child,  or  children  be  alive,  then  (2)  to  surviving  par- 
ents who  are  dependent,  or  partially  so,  upon  the  deceased;  if  none,  then 
(3.)  to  such  other  velatii'e  of  the  deceased  as  survive  Jiim  and  are  de- 
pendent upon  him,  in  the  sum  of  Three   'Thousand  Dollars   i$j,ooo.oo). 

A  workman  receiving  injuries  wJdch  permanently  incapacitate  him 
from  the  performance  of  zeork  shall  receive  a  compensation  monthlw 
not  to  exceed  One  Dollar  ($1.00)  a  day  for  each  zvorking  day.  Com- 
pensation for  permanent  injury  shall  not  be  allowed  until  after  the  ex- 
piration of  tzvelve  weeks  from  tlie  time  such  injuries  zvere  sustained, 
provided  that  the  medical  practitioner  examines  and  pronounces  the  in- 
jury as  being  permanent,  compensation  may  then  be  allowed  from  com- 
mencement of  disability.  The  Auditor  of  State,  however,  may,  when 
in  his  judgment  he  deems  it  advisable,  use  so  much  of  the  funds  as  is 
necessary  in  the  procuring  of  a  medical  practitioner,  for  the  purpose  of 
examinafton  or  treatment  under  this  Act,  for  such  injuries  as  herein  men- 
tioned compensation  shall  continue  during  disability,  or  until  settlement 
is  affected  as  provided  for  in  Section  9  of  this  Act.  Total  or  permanent 
disability  shall  consist  of  the  loss  of  both  legs  or  both  arms,  the  total 
loss  of  eye  sight  or  paralysis,  or  other  conditions  incapacitating  him 
from  work,  caused  by  accident,  or  injuries  received  during  employment 
as  specified  by  this  Act;  provided,  that  if  death,  as  a  result  of  the  in- 
jury, cJisues  at  a  period  not  longer  than  one  year  from  date  of  accident 
the  sum  of  Three  Thousand  Dollars  {$j,ooo.oo)  shall  be  paid  the  de- 
ceased zvorkman's  dependents  as  hereinbefore  provided.  The  representa- 
tives of  a  foreigner,  except  the  widow  or  dependent  children,  who  were 
not  living  within  the  country  at  the  time  of  the  accident,  shall  have  no 
claim  for  the  compensation  provided  for  in  this  Act.  Such  foreign 
person  shall  file  their  foreign  address,  if  married,  with  the  office  of  their 
employer  with  whom  they  are  emplo3^ed  and  duplicate  thereof  with 
the  State  Auditor,  giving  their  wife's  name  and  dependent  children,  and 
such  other  identification  as  may  be  required  by  the  Auditor  of  State. 
Loss  of  any  Limb,  or  eye,  caused  by  accident  to  a  zvorkman  while  em- 
ployed as  provided  for  in  this  Act,  shall  be  compensated  for  in  the  sum 
of  One  Thousand  {$1,000.00)  Dollars,  provided,  that  in  the  event  there 
shall  be  no   funds  available  in   the   fund  to  pay  the   Auditor's   warrant 


workmen's  compensation,  etc.  43"- 

when  drawn  the  same  shall  draw  interest  out  of  the  fund  at  the  rate  of 
ten  per  cent  per  annum  until  such  warrant  is  called  for  payment  by  the 
Treasurer  which  shall  be  as  soon  as  the  fund  is  sufficient  to  pay  the  same 
with  its  interest  then  due. 

Section  6.  Monthly  Payments — Applications  for.  Where  a  work- 
man is  entitled  to  monthly  payments  under  this  Act,  he  shall  file  with 
the  Auditor  of  State  his  application  for  such,  together  with  a  certificate 
from  the  County  physician  of  the  County  wherein  he  resides,  attested 
before  a  Notary  Public. 

Section  7.  Frandnlcnt  Claims — Duty  of  Auditor.  If  any  person 
or  persons,  company  or  corporation  who  is  then  paying  into  this  insur- 
ance fund  shall  believe  that  any  person  or  persons  are  obtaining,  or 
having  made  application  to  obtain  benefits  hereimder  improperly  or 
fraudulently  and  shall  file  his  written  request  that  such  person's  claim 
be  investigated,  the  State  Auditor  must  upon  the  receipt  of  such  re- 
quest, request  the  Secretary  of  the  State  Board  of  Health  to  make  an 
examinataion  for  the  purpose  of  this  Act  and  his  certificate  as  to  the 
condition  of  the  person  or  persons  with  reference  to  their  rights  to 
benefit  under  this  Act  shall  be  conclusive  evidence  as  to  his  condition. 

Section  8.  Claimant  Refusing  to  Submit  to  Examination — Effect. 
If  the  workman  refuses  to  submit  himself  to  such  examination,  or  in  any 
way  obstructs  the  same,  his  right  to  compensation  under  this  Act  shall 
be  suspended  until  such  examination  takes  place,  and  shall  absolutely 
cease  unless  he  submits  for  an  examination  within  one  month  after  being 
required  to  do  so.    - 

Section  9.  Monthly  Payments — Redemption  by  Lump  Sum — 
Amount.  When  any  monthly  payment  has  been  made  to  a  workman 
for  any  period  whatever,  the  liability  under  this  Act,  may  on  the  ap- 
plication by,  or  on  behalf  of  the  w^orkman,  be  redeemed  by  the  payment 
of  a  lump  sum,  which  in  no  instance  shall  be  in  excess  of  the  amount 
specified  as  death  indemnity,  and  all  monthly  payments  made  prior  shall 
be  deducted  from  such  settlement. 

Section  10.  Annual  Report  of  Auditor — Ploiary  Pozcer  to  Ad- 
just Claims.  The  Auditor  of  State  shall  report  in  January  of  each  year 
to  the  Governor  of  the  experience  and  business  of  this  function  of  his 
department,  and  shall  have  plenary  power  to  determine  all  disputed 
cases  which  may  arise  in  its  administration  not  herein  provided  for.  and 
to  recommend  in  his  report  the  rates  or  premium  necessary  in  order  to 
preserve  such  fund,  and  shall  order  paid  such  indemnification  as  here- 
in provided.  He  shall  have  power  to  define  the  insurance  provisions  of 
this  Act  by  regulations  not  inconsistent  therewith  and  shall  prescribe 
the  character  of  the  monthly  or  other  reports  required  of  the  parties 
liable  hereunder  and  the  character  of  the  proofs  of  deaths,  or  to  total 
permanent  disability,  and  shall  have  power  to  make  all  other  orders  and 
rules  necessary  to  carry  out  tlie  true  intent  of  this  Act. 


44  LEGISLATIVE    REFERENCE  DEPARTMENT^    OHIO    STATE   LIBRARY. 

Section  ii.  Release  of  Employer — Benefits  Exempted — Suit — 
Forfeiture  of  Benefits.  No  money  paid  or  payable  in  respect  of  insur- 
ance or  monthly  compensation  under  this  Act  shall  be  capable  of  being 
assigned,  charged,  taken  into  execution  or  attached,  nor  shall  the  same 
pass  to  any  other  person  by  operation  of  law ;  and  the  acceptance  of 
pecuniary  benefit  under  the  provisions  of  this  Act  shall  operate  to  release 
the  person  or  persons,  corporation,  partnerships,  or  associations  causing 
such  injuries  or  death  for  which  benefits  are  so  claimed,  who  shall  have 
paid  the  assessment  provided  in  Section  2  of  this  Act,  and  also  the  em- 
ployer, officers  and  agents  thereof  from  all  liability  and  claim  arising 
from  such  injuries  or  death.  The  commencement  of  a  suit  to  recover 
for  such  injuries  or  death  shall  operate  as  a  forfeiture  of  the  right  to 
benefit  under  this  Act. 

Section  12.  Violations  of  Provisions  of  Act — Penalties.  A  man- 
ager, agent,  foreman,  accountant,  person  or  persons  who  represent  any 
corporation,  partnership,  association,  person  or  persons,  engaged  in  the 
mining  or  managing  of  any  coal  mines  or  coal  washers  in  Montana,  or 
person  or  persons  liable  for  the  payments  herein  provided  for  who  shall 
violate  the  intent  of  this  Act  by  inaccurate  reports  of  tonnage  of  coal  pro- 
duced by  them,  or  the  earnings  of  employees  in  their  employ  or  who  in  any 
manner  hinders  or  obstructs  the  Auditor  of  State  in  ascertaining  facts 
bearing  upon  any  case  provided  for  in  this  Act  or  who  may  refuse  cor- 
rectly to  make  out  such  reports  as  are  required  by  this  Act,  or  as  re- 
quested by  the  Auditor  of  State,  or  submit  to  its  provisions,  when  liable 
therefor,  or  who  shall  fraudulently  obtain  benefits  hereunder  shall  be 
fined  for  each  offense  the  sum  of  not  less  than  One  Hundred  ($100.00) 
Dollars  nor  more  than  Five  Hundred  ($500.00)  Dollars  and  imprison- 
ment in  the  County  jail  for  a  period  of  not  less  than  one  month  nor  more 
than  six  months,  or  by  both  such  fine  and  imprisonment.  The  proceeds 
of  all  fines  shall  be  forwarded  to  the  State  Treasurer  and  by  him 
credited  to  the  Insurance  Fund. 

Section  13.  Act  Takes  Effect — When.  This  Act  to  be  in  full 
force  and  effect  from  and  after  the  first  day  of  October,  nineteen  hun- 
dred and  ten,  benefits  to  commence  four  months  thereafter. 

(Approved  March  4,  1909.) 


APPENDIX  II. 

WORKINGMEN'S  INSURANCE  IN  GERMANY. 

(From  "Workingmen's  Insurance   in   Europe,"  by  Lee  K.   Frankel   and   Miles   M. 

Dawson.) 

The  most  striking  fact  in  the  remarkable  industrial  advance  made 
by  Germany  during  the  last  half  century  is  the  improved  condition  of 
the  great  body  of   its  working  people.     On  all  sides  are  evidences  of 


workmen's  compensation,  etc.  45 

greater  effectiveness,  contentment  and  prosperity.  Many  causes  have 
undoubtedly  contributed  to  this  end,  but  perhaps  the  most  important  has 
been  the  fostering  care  of  the  government.  It  has  met  the  requirements 
of  its  people  in  an  orderly  and  businesslike  manner,  looking  upon  their 
occupations  as  both  social  and  individual  in  character.  In  nothing  is 
this  attitude  better  shown  than  in  the  comprehensive  system  of  insur- 
ance legislation,  the  beginning  of  which  was  made  a  quarter  of  a  cen- 
tury ago. 

At  the  close  of  the  war  with  France,  the  attention  of  the  govern- 
ment was  directed  to  the  adjustment  of  the  new  conditions  which  the  un- 
foreseen industrial  development  had  brought  about.  Socialism  of  the 
revolutionary  type  was  everywhere  making  rapid  strides  among  the 
working  classes.  To  check  these  forces  of  discontent,  as  well  as  to 
meet  the  legitimate  demands  of  the  people,  Bismarck,  with  remarkable 
far-sightedness,  presented  his  plan  of  obligatory  insurance  of  work- 
ingmen  as  a  matter  of  civic  duty.  This  embraced  three  forms  of  work- 
ingmen's  insurance ;  namely,  against  sickness,  accident  and  invalidity. 
In  the  short  period  of  nine  years,  1881-1889,  every  detail  of  this  com- 
prehensive scheme  was  put  into  operation.  Legislation  so  far-reaching 
in  its  consequences  had  never  before  been  attempted.  Though  at  the 
time  regarded  as  revolutionary  in  character,  it  has  served  the  country 
even  b'etter  than  its  author  dreamed  possible.  Now  at  the  close  of  a 
period  of  twenty-five  years,  it  is  recognized  as  the  most  effective  in- 
strument for  the  protection  of  the  great  body  of  the  people  in  the  im- 
portant exigencies  of  life ;  and  its  merits  are  warmly  appreciated  by  all 
who  have  the  welfare  of  the  nation  at  heart. 

The  wide  sphere  of  its  usefulness  is  shown  by  the  summary  of  in- 
surance statistics  for  1906  in  Table  14.  In  that  year,  the  population  of 
Germany  was  61,200,000,.  of  whom  no  less  than  15,400,000,  or  more 
than  one  in  four,  were  wage-earners. 

It  must  not  be  supposed,  however,  that  the  system  inaugurated  in 
1883,  through  the  efforts  of  Bismarck,  was  the  creation  of  any  one  man 
or  was  imposed  upon  a  people  unprepared  for  it.  On  the  contrary,  it 
was  the  last  step  in  a  long  historical  process  in  which  we  find  blended 
the  struggle  of  the  working  people  and  the  legislative  policy  of  the 
ruling  classes,  and  was  based  on  political  principles  matured  through  de- 
cades of  reflection  and  discussion. 


46  LEGISLATIVE   REFERENCE  DEPARTMENT,   OHIO   STATE   LIBRARY. 

TABLE    14 SUMMARY    OF   ACCIDENT_,    SICKNESS,    AND    INVALIDITY    AND    OLD 

AGE  INSURANCE  STATISTICS,    I906. 


Losses,  Receipts,  etc. 


tn 

tn 

<u 

<0 

•0 

a 

0 

03 

m 

•1-1 

tn 

tn 

C 

C 

a 

rt 

bo 

bo 

< 

< 

Persons  insured    

Claimants  paid    

Receipts* 

From  employers    

From  Workmen  

Disbursements,  total   

For  payment  of  claims.. 

For  expenses   

Amount  paid  per  claim 

Total  cost  per  person  insured 


19,227,213 

1,076,200 

(Marks) 

189,708,567 

166,973,578 

166,973,578 

165,964,271 

143,161,276 

22,802.995 

132,35 

8.63 


12,408,706 

4,820,900 

(Marks) 

314,461,891 

95,510.006 

205,568,399 

282,487,163 

266,347,487 

16,139,676 

55,25 

22.77 


75.  bo 
.50 

bo--^ 


14,142,700 

1.324,000 

(Marks) 

263,340,791 

85,063,085 

85,063,085 

182,355,360 

166,039,147 

16,316,213 

125,41 

15.60 


*Total  receipts  for  sickness,   accidents  and  invalidity  insurance,   include  sums 
from  other  sources,    together  with  contributions  of  employers  and  employes. 


TENDENCY     TOWARD     A     COMPLETE     AND     CONNECTED 
SYSTEM  OF  INSURANCE  FOR  WORKINGMEN*. 

To  insurance  against  sickness,  accidents,  invalidity  and  old  age, 
which  has  been  in  force  for  more  than  twenty  years  in  one  of  the  lead- 
ing nations  of  Europe,  it  has  been  proposed  in  time  to  add  insurance 
against  unemployment.  The  goal  seems  to  be  a  perfected  system  under 
which  it  will  not  be  possible  to  find  a  workingman  or  his  family  in  dis- 
tress, because  of  temporary  or  permanent  cessation  of  wages,  except 
as  the  reult  of  his  own  wilful  act. 

As  has  already  been  shown,  the  greatest  development  in  this  di- 
rection has  been  in  Germany.  It  is  sufficient  here  to  restate  as  briefly 
as  possible  the  main  features  of  the  German  system. 

First,  compulsory  insurance  against  sickness  in  societies  of  a  demo- 
cratic type,  subject  to  the  control  of  their  members.  Employes  con- 
tribute two-thirds  of  the  entire  premium  income  and  employers  one- 
third,  out  of  which  the  cost  of  medical  treatment,  medicines  hospital 
treatment,  if  necessary,  and  a  daily  sum  of  one-half  the  wages  usually 
earned,  are  paid  during  the  first  26  weeks  of  disability  caused  by  sick- 
ness, and  during  the   first    13   weeks  of   disability  caused   by   accident. 


*With   the   exception   of   the   first   sentence   copied    from    "Workingmen's    In- 
surance in  Europe,"  by  Lee  K.  Frankel  and  Miles  M.  Dawson. 


workmen's  compensation,  etc.  47 

]\Ienibership  in  these  societies  is  obligatory  upon  all  wage-earners.  A 
choice  is  open  to  workingmen  from  among  several  classes  of  societies ; 
namely,  private  sickness  insurance  societies,  (to  which  the  employer, 
however,  is  not  obliged  to  contribute)  ;  establishment  funds  connected 
with  particular  factories  or  employers;  trade  societies,  such  as  exist 
among  the  iron  trades  or  are  carried  on  by  labor  union ;  and  communal 
or  local  societies  which  must  receive  everybody  not  insured  elsewhere. 
The  compulsion  rests  upon  the  employers,  who  mus/  see  that  the  con- 
tributions of  their  employes  as  well  as  their  own  are  paid.  Failing  this, 
the  communal  sickness  insurance  society  will  perform  its  part  precisely 
as  if  the  employe  had  been  a  member  and  will  collect  from  the  employer 
the  benefits  paid  and  all  the  back  premiums  due,  both  from  the  employe 
and  from  the  employer,  together  with  a  fine  which  may  in  case  of  con- 
tumacy be  pretty  large. 

Contribution  to  sickness  insurance:  $4.29  yearly  by  insured  work- 
men, and  $1.90  yearly  by  employers  per  insured  workmen.  Benefits: 
-$13.75  P^i"  year  per  sick  member;  $.70  per  sick  day. 


Second,  having  by  their  contribution  to  sickness  societies  rid  them- 
selves of  a  portion  of  their  legal  liability  for  the  consequences  of  in- 
dustrial accidents,  employers  are  next  required  to  insure  in  mutual  com- 
panies, composed  of  employers  of  the  same  general  class,  against  liabil- 
ity for  the  consequences  of  industrial  accidents  extending  beyond  13 
vrtks.  These  mutual  companies  adjust  all  claims,  fix  all  rates  of 
premiums  and  otherwise  conduct  their  own  business,  subject  only  to 
supervision  of  the  government.  Benefits  are  paid  in  periodical  install- 
ments to  the  injured  workingman  if  he  continues  disabled  beyond  13 
weeks,  throughout  the  entire  period  of  his  disability,  and  to  his  widow 
during  her  widowhood.  His  orphans  receive  pensions  vmtil  they  reach 
the  age  of  fourteen,  and  longer  if,  because  of  feeble-mindedness  or 
physical  incapacity,  they  are  not  capable  of  self-support.  Provision  is 
also  made  for  dependent  parents  and  grandparents. 

Yearly  contributions  to  accident  insurance :  Premiums.  $42,890.- 
350;  $2.03  per  workman,  $7,96  per  establishment.  Benefits:  Total 
compensations.  $37,772,648  to  980,044  persons;  $38.44  per  injured  work- 
man. 


Third,  a  workingman  disabled  otherwise  than  Ijy  industrial  ac- 
cident, remaining  partially  or  totally  incapacitated  longer  than  26  weeks, 
is  cared  for  by  the  invalidity  insurance  carried  on  by  the  government, 
which  maintains  a  fund  in  each  of  a  large  number  of  districts,  usually 
comprising  a  kingdom  of  the  empire.  Provision  is  made  according  to 
certain  fixed  rules  not  dependent  upon  the  rate  of  wages  previously  re- 
ceived,  but  upon   the   length   of   time   for   which   the   insured   had    paid 


48  LEGISLATIVE   REFERENCE  DEPARTMENT,   OHIO   STATE   LIBRARY. 

premiums  for  disability  insurance,  benefits  continuing  throughout  the 
Hfetime  of  the  permanently  disabled  workingman.  Included  in  dis- 
ability insurance  is  old  age  insurance.  Under  the  law  the  attainment  of 
the  age  of  seventy  is  taken  as  evidence  of  permanent  and  total  disability 
and  the  septuagenarian  workingman  is  automatically  entitled  to  a  cer- 
tain maximum  income,  if  he  has  paid  all  premiums  on  his  invalidity  insur- 
ance. Toward  this  maximum  income  the  government  makes  a  small  con- 
tribution annually  in  addition  to  what  is  paid  from  the  invalidity  insurance 
fund.  This  is  the  sole  contribution  of  the  German  government  to  bene- 
fits payable  under  any  portion  of  its  scheme  for  the  support  of  working- 
men  and  their  families.  In  all  other  branches,  it  defrays  at  most  the 
expenses  of  supervision,  deciding  appeals  and  collecting  statistics. 

Yearly  contribution  to  old  age  and  invalidity  insurance:  $1.50  by 
workman;  $1.50  by  employers  per  workman;  $.83  by  state  per  work- 
man; $3.83  total  annual  premium.  Benefits:  Average  invalidity 
pension  $41.50;  old  age  pension  $40;  sickness  pension  $62. 


At  the  present  time,  the  government  has  before  the  Reichstag  a 
proposal*  planned  on  lines  similar  to  the  invalidity  insurance  scheme, 
for  providing  annuities  to  widows  and  orphans  of  workingmen  whose 
deaths  are  caused  otherwise  than  by  occupational  accidents.  Cost  of 
these  annuities,  as  in  the  case  of  invalidity  insurance,  is  to  be  met  one- 
half  by  the  employer  and  one-half  by  the  employe,  and  is  to  be  taxed 
upon  all  employes  whether  men  or  women,  married  or  single. 

This  German  program  comes  nearer  to  a  complete  and  perfected 
scheme  of  social  insurance  than  any  planned  or  proposed  elsewhere. 
Austria,  however,  as  has  been  shown,  is  contemplating  very  nearly  the 
same  thing. 


APPENDIX  III. 

SUGGESTIONS  FOR  A  STATE  LAW. 
(From  "State  Insurance,"  by  Frank  W.   Lewis.) 

It  would  not  be  difficult  to  frame  a  practical  scheme  for  workmen's 
insurance  for  a  state  like  Massachusetts.  It  would  perhaps  follow  in  its 
general  features  the  German  law.  It  would  indicate  those  upon  whom 
the  insurance  should  be  obligatory,  the  amount  of  insurance  to  be  car- 
ried, the  several  purposes  to  which  it  should  be  applicable,  the  amount 
of  premiums,  and  the  mode  of  payment.  It  could  permit  insurance 
through  existing  organizations  but  prescribe  that  it  should  be  efifected 
through  the  state  unless  equivalent  provision  had  been  made  elsewhere 
subject  to  the  approval  of  the  Insurance  Department.  It  might  con- 
template voluntary  payments  on  the  part  of  the  insured,  but  direct  that 
in  case  of  failure  to  make  such  payments  the  employer  should  meet 
the  insurance  charges  out  of  the  wages  of  the  employe. 


■      workmen's  -tbMJJENSA'.CrON:  i:T(^:.  -  •    -'-  49 

The  law  would  specify  minutely  under  what  conditions  benefits 
should  be  paid ;  how  long  a  period  of  disability  from  accidents  should  be 
covered  and  the  amount  payable,  based  upon  wages ;  how  much  and  what 
sick-pay  should  be  allowed;  in  what  form  insurance  should  be  paid  in 
the  event  of  death,  whether  by  annuities  or  otherwise;  at  wdiat  age 
pensions  should  commence  and  what  should  constitute  invalidity.  It 
should  also  prescribe  under  wdiat  conditions  medical  and  surgical  at- 
tendance should  b'e  rendered  and  make  provision  for  the  construction 
of  adequate  hospitals  and  sanatoria. 

For  the  administration  of  such  a  plan  the  state  is  already  partially 
equipped.  It  has  a  highly  efficient  insurance  department  and  an  in- 
surrance  commissioner  with  large  powers  of  supervision,  control,  and  di- 
rection. This  department  can  perform  all  of  the  actuarial  work  required 
for  the  proposed  system.  It  can  prepare  and  publish  tables  of  morbidity 
and  tariffs  of  risks,  somewhat  tentative  at  first  but  gradually  attaining 
a  high  degree  of  accuracy.  It  could  advise  Richard  Roe  at  any  time  of 
life  and  engaged  in  any  kind  of  employment  just  what  it  will  cost  him 
per  year,  in  a  single  item,  to  insure  against  death,  accidents,  sickness,, 
invalidity,  and  old  age. 

The  department  would  doubtless  find  it  convenient  to  make  use 
of  the  assessors  in  the  cities  and  towns  throughout  the  state  in  acquiring 
the  data  needed  for  its  purposes.  It  woidd  add  but  slightly  to  the  work 
of  the  assessors,  in  their  annual  canvass  of  the  state,  to  procure  the 
additional  information.  In  addition  to  the  work  of  the  insurance  de- 
partment and  the  assessors,  there  would  be  needed  in  each  town  or 
ward  of  a  city  an  insurance  agent  whose  work  would  be  done  under  the 
direction  of  the  department. 

For  the  inauguration  of  such  a  system  in  Massachusetts,  for  ex- 
ample, hardly  more  is  needed  than  an  intelligent  and  definite  purpose. 
There  is  not  needed  the  constructive  statesmanship  of  a  Bismarck.  The 
way  has  been  blazed ;  the  experiment  of  a  quarter  of  a  century  ago  has 
proved  manifestly  successful.  The  Utopia  of  yesterday  has  become  the 
terra  cognita  of  today. 


*  4    w.  c. 


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